Preview: Legal Education Best Practices Report, United States

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LEGAL EDUCATION “BEST PRACTICES” REPORT, UNITED STATES Prepared by Margaret Martin Barry, ∗ Jon C. Dubin, ** and Peter A. Joy *** for PILnet Introduction: Development of Legal Education in the United States Legal education in the United States was primarily achieved through apprenticeship training and self-study until the end of 18th century. Under the apprenticeship model, an individual would associate with a lawyer and work with the lawyer, who would instruct the pupil both about legal doctrine and legal skills necessary to become a lawyer. The pupil would also engage in self-study, often copying portions of legal treatises and making extensive notes. At the end of the 18th century, single lawyers or small groups of lawyers began to open proprietary law schools, and would provide lectures to groups of students who sought to become lawyers. Students attending the proprietary law schools also usually engaged in some apprenticeship period before becoming lawyers, but the

proprietary law schools marked the beginning of law classes or courses in the United States. Although colleges existed in the United States as early as the 17th century, the study of law was not viewed as an academic field until the late 18th and early 19th centuries, when colleges began to hire professors of law and create law departments. As law emerged as an academic field, it was based on the European model of that era and stressed a general education with an academic emphasis on law subjects. Law was taught much like history or economics, and the study of law focused on legal doctrine and theory. Law was an undergraduate field of study, and the professional aspects of law were expected to be pursued after the college or university studies through some apprenticeship training. As university-based legal education spread, proprietary law schools began to close their doors. The legal system in the U.S. is a common law system, which means that in addition to statutory sources of law

there is also the law that is created by court decisions or judgments that address issues that may not codified in statutes. By studying legal doctrine, law students learn both the law that appears in statutes and the common law as developed through court decisions or judgments. By studying legal theory, students learn about the nature of law, legal reasoning, legal institutions, and approaches courts use to interpret statutes as well as to develop the common law. Starting with the late 19th and early 20th centuries, more and more individuals sought a university based legal education. At this same time, the American Bar Association (ABA), a national association for lawyers in the United States, was founded. The ABA supported the requirement of a university legal education as a requirement for the admission to practice law. Many jurisdictions in the United States accepted either apprenticeship training or a universitybased legal education through this period. ∗ Associate Professor

of Law, The Catholic University of America, Columbus School of Law. Professor of Law, Rutgers School of Law-Newark. *** Vice Dean and Professor of Law, Washington University in St. Louis School of Law. ** In the late 1920s and early 1930s, the ABA’s campaign for university-based legal education started to become more successful, as many jurisdictions started to require such legal instruction as a condition to being admitted to practice. During this period, the ABA also began an ultimately successful campaign to make the study of law a graduate level undertaking, which ultimately evolved into a three year course of study. As a graduate level of study, law schools require law students to have an undergraduate degree in some field of study before admission to law school. By the late 1950s, law schools also started to require law school applicants to take a standardized admission’s test, and today performance on a standardized test is required. Today, the three years of graduate

study in U.S. law schools continues to have a focus on legal doctrine and legal theory. The first year of law school is usually taught by full-time law faculty members, and a majority of the other courses in most law schools are taught by full-time faculty. Practicing lawyers and judges also teach some courses on a part-time basis, usually no lawyer or judge will teach more than one course per year, and these part-time law faculty members are called adjunct law faculty members. As a three year course of graduate level study, law remained almost exclusively legal doctrine and theory based, until the late 1960s, when experiential learning courses began to be incorporated into the curricula at most law schools. Today, legal education in the United States is still heavily focused on teaching legal doctrine and legal analysis, though every student receives some instruction in lawyering skills through experiential learning courses. I. Main characteristics of the current legal education

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system in the United States A. Program of Professional Legal Education Professional legal education in the United States is a graduate level pursuit. The juris doctor or juris doctorate (J.D.) is the primary professional degree and is a pre-requisite to licensing for practice as an attorney in most of the United States. It is a law degree that originally surfaced in the 1960s, and it was designed to replace, or at least as an alternative to, its academic equivalent, the Bachelor of Laws or LLB degree. It gained popularity and for the most part has replaced the LLB since it more accurately reflects the level of training provided in U.S. law schools. A J.D. is also the prerequisite for obtaining a master of laws (LLM), which in turn is a prerequisite for obtaining a doctor of laws (SJD). However, the higher degrees in law are not linked to licensure, and most lawyers do not seek the LLM, and even fewer seek the SJD. While all law schools do not offer the LLM or SJD degree, only law

schools have the authority to offer the graduate degrees in law. The J.D. is typically a three year program for full-time students and a four year program in those law schools that also offer a program for part-time or evening students. American Bar Association (ABA) Accreditation Standards provide that accredited law schools must require students to complete their course of study in no fewer than twenty-four and no more than eightyfour months. B. Access to Legal Education 2 To enter law school, students are generally expected to have successfully completed a four year undergraduate program and received a Bachelor of Arts (B.A.) or a Bachelor of Science (B.S.) degree. There is no specific undergraduate course of study that is recommended or expected in preparation for the study of law. Some students benefit from work experience prior to law school, or receive graduate degrees in other fields prior to entry, but many enter law school in the academic year following completion of

their undergraduate degrees. In addition to obtaining a bachelor’s degree, most applicants are required to take the Law School Admissions Test (LSAT) and score on the test at the level desired by the admitting institution. The LSAT scores, combined with performance in obtaining an undergraduate and any postgraduate degrees, are considered predictive of performance in the first year of law school, and have been relied upon to predict overall success in law school and in bar examinations. The extent of the reliance on the LSAT has been a source of some controversy, as the questions asked have been critiqued for not testing competencies relevant to practice. High LSAT scores for entering law students have also been tied to the status of law schools in the rankings of professional schools by a magazine popular for such reporting. While the magazine’s rankings are only partially influenced by the LSAT scores, their use in the ranking calculus has had a significant impact on admissions

practices and led to distortions in the use of the scores in the admissions process. The emphasis on LSAT scores has also conflicted with law school interest in and the accreditation expectation that schools achieve a diverse student body. A particular concern has been the relative stagnation with regard to racial diversity, and the actual decline in enrollment for black and Mexican Americans. The reasons are far more complex than use of LSAT scores, but demand for increasingly high scores has had its impact. Several law schools have offered students the opportunity to enter law school after completing three years of undergraduate study, with the chance to combine their first year of law school with completion of undergraduate studies. However, this is not a significant number of schools and, when offered, the opportunity is usually limited to students within the same university. Of the 210 ABA-approved (accredited) law schools in the United States, approximately 75 are public law

schools, which means that they are funded primarily by state or local governments. Students at these public law schools pay tuition, although if they resident in the jurisdiction their tuition is significantly reduced. Lower taxes and the impact of the economic downturn have caused many of these institutions to raise tuition, seek increased private funding and cut back on expenditures. Private law schools are primarily funded by tuition, philanthropy and grants. Law schools seek grants from both private and public sources including private foundations and various government programs that support research, educational or public service initiatives. For example, law schools have sought support for clinical legal education programs from major private foundations such as the Ford Foundation, from federal government agencies such as the United States Department of Education, the Legal Services Corporation and the Internal Revenue Service, and from a variety of state supported agencies

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including those established based on a program that utilizes the proceeds from interest on lawyers’ trust accounts in banks that has been made available to support legal services for the poor. In addition, law schools solicit donations from law school graduates to help pay for the cost of legal education. 3 As law shifted from an apprenticeship model to a law school model, it became easier for students from lower income families to acquire a legal education. A law student no longer had to know a lawyer who would accept the student as an apprentice, which often was a barrier for students from lower income, racial minority, and lower social status families. Barriers still remained due to discriminatory law school admissions policies based on race, gender, religious beliefs, and national origin for a large part of the 20th century, though these barriers started to fall due to changing societal views, the growing recognition that equal protection guaranteed by the U.S. Constitution

prohibited such discrimination, and because of anti-discrimination laws. The first beneficiaries of more open access to legal education due to changing societal views were immigrants to the U.S. from European countries starting in the 1920s. Women also started to be admitted, initially in small numbers, through the first half of the 20th century. Racial minorities were also admitted, either in small numbers, or to law schools that were created especially to assist them in gaining entrance to the legal profession. Starting in the late 1950s and through the early 1970s, a series of successful challenges to discriminatory admission policies led to greater access for women and racial minorities. Today, cost has become a major barrier as other discriminatory barriers are legally prohibited. There has been strong criticism of law schools for the rapidly rising costs of legal education. Many fear that students from lower income families are being prevented from pursuing a law school

education. While a legal education has been a gateway for social mobility for over 100 years, that gateway has become more limited due to the increasing costs of legal education. Even before recent economic problems, the rising cost of legal education was making it harder for lower income students to become lawyers. In order to understand this cost critique of legal education, and how it may be affecting social mobility, a brief description of the rising costs of legal education is necessary. In 1990, private law school tuition averaged $11,000, about three times more than the approximately $3,500 average tuition at a public (state supported) law schools. Throughout the 1990s and early 2000s, law school tuition at both private and public law schools rose at rates that sometime exceeded 10 per cent per year. Since the economic downturn in 2008, most law schools have continued to increase tuition between 3 to 5 per cent per year, even though the cost of living in the U.S. has remained

flat. As a result, the average tuition at private law schools is approximately $40,000 per year and average tuition at public (state supported) law schools is approximately $20,000 per year. Due to the high cost of legal education, close to 80 percent of law students take out loans to fund their legal education. The average law school education debt load is approximately $90,000. Students who have taken out loans for their undergraduate educations often have combined debt loads in excess of $120,000. This escalation in law school tuition and willingness of law students to incur such high debt was fueled by near 100% employment rates at or within six months of graduation and relatively high salaries in the 1990s and early 2000s, with some entry level salaries above 4 $160,000 per year by 2008. Since 2008, the number of such high paying positions has dropped significantly and employment rates have been reduced. Educational debt has also had a significant impact on practice options

graduates pursue. Students who may otherwise wish to practice as public interest lawyers by working for nonprofit organizations or the government often seek higher paying jobs in private firms and companies in order to repay student loans. To assist students who want to dedicate their legal careers to public service, many law schools developed loan repayment assistance programs, known as LRAPs, given the absence of significant federal loan assistance. In 2007, through the College Cost Reduction and Access Act, the federal government stepped in to provide meaningful loan forgiveness assistance, and this has helped students who are committed to public interest law. These students still must be able to meet the program’s requirements, including the requirement that they make 120 on-time loan payments using the Act’s incomebased repayment plan while working full-time in a qualifying public interest position for each of those 120 months. Competing obligations can make this a challenge

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for some students. Law faculty have been the primary beneficiaries of higher tuition in the form of increased number of faculty with higher salaries and reduced teaching loads, especially over the past twenty years. Today, however, faculty hiring has been greatly reduced and faculty salaries are generally frozen and, at some state law schools, reduced as much as 10 per cent. Law schools are also exploring sharing the costs of running and staffing law libraries. Still, these measures have simply slowed tuition increases and have not lead to tuition reduction. Some in legal education believe that many law schools will have to change dramatically to remain viable. C. Regulation of Legal Education As late as 1921, no state required a university-based law school degree as a precondition for admission to practice. Apprenticeships provided most of the training for those entering the legal profession. Today, all but seven jurisdictions require a J.D. or LLB degree in order to become licensed,

and 19 of the 54 states and U.S. territories require that it come from a law school that has been accredited by the American Bar Association. Those jurisdictions that do not require graduation from an accredited law school usually have other requirements, such as state approval of the law school. From the inception of the American Bar Association in 1878, the organization instructed its nascent Section of Legal Education and Admissions to the Bar to prepare uniform requirements for law schools. These requirements became the ABA Standards for Approval of Law Schools. By the close of 1930, nearly every law school had adopted the Standards as the principles for law schools to organize their curricula and operations. In 1952, the U.S. Department of Education granted the ABA’s Council of the Section of Legal Education and Admissions to the Bar the authority to accredit legal education programs in the country. This step made the ABA the established accrediting agency for law schools and

thus moved the Standards from a voluntary set of principles to a basis for law school accreditation. This was a delegation of the accrediting role by the Department of Education to the ABA. Approximately every five years, the Department of Education reauthorizes the ABA to continue its role as law school accrediting body, provided it meets with the approval of the Department. Based on this 5 authority and consistent with the regulations issued by the Department of Education, the Council has refined the standards and rules and has evaluated law schools ever since 1952. In addition to the 210 law schools that have received accreditation by the ABA, there are approximately 40 law schools that are not accredited. Accreditation means that the schools have met the minimum requirements set by the Standards and Rules of Procedure for Accreditation of Law Schools (hereinafter, Standards). The Standards address every aspect of institutional performance, including strategic planning, faculty

governance, allocation of authority between the dean and the faculty, non-discrimination in hiring and in student enrollment, the curriculum, the extent of library and information resources, and the adequacy of the facilities. Approximately 90 percent of the accredited law schools are part of a larger university, and students attending such schools benefit from the broader resources the universities have to offer. However, relationship to a university raises questions of autonomy within the law school. The Standards provide some guidance in this regard, specifying that the dean is to have the authority and support needed to be effective, and both the dean and the law school faculty must have a significant role in determining educational policy. Furthermore, law school resources must be adequate to sustain the program of legal education and the school’s mission. Since law schools are often among the better endowed departments within universities, it is tempting for universities to tax

or reallocate some of the funds, and this ABA requirement provides some protection. Conversely, the Standards addressing faculty size, libraries and facilities have provided support for making law school expenditures a priority for allocation of university resources. The Standards and ABA oversight have resulted not only in framing the expectations for legal education, but have meant that universities and those authorized to accredit universities have essentially left law schools alone. 1 The ABA’s Section of Legal Education and Admissions to the Bar has detailed requirements for accreditation of law schools that are set out in its Standards for Accreditation and Rules of Procedure. The Standards and Rules are generated and revised through the Section’s Standards Review Committee. The committee is composed of volunteer law professors and deans, academics who are not from the legal academy, lawyers, and judges. The Standards Review Committee drafts standards and rules that are

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submitted to the Council of the Section of Legal Education and Admissions to the Bar, which is a similarly composed body. If approved, the draft standards are sent back to the Committee for purposes of soliciting public commentary. After receiving public input, the draft language may be revised prior to submission to the Council for approval. Once approved by the Council, the ABA’s House of Delegates, composed of lawyers elected to represent their jurisdictions from across the country, can review the proposed changes. However, final passage rests with the Council. The work of the Standards Committee is ongoing. It reviews the Standards in response to perceived shortcomings and issues affecting the quality of legal education, and the Department of 1 The Department of Education has also delegated the responsibility to accredit universities to regional accreditation organizations. To the extent that law and other professional schools that have independent accreditors are part of the

university, there is some general overview that may be consistent with regard to university accreditation. However, the professional school accreditation is essentially separate from that of the university. This is not a consideration at all for those law schools that are not connected to a university. 6 Education requires a periodic comprehensive review. The comprehensive review is generally done every five to seven years. The process of accrediting law schools requires compliance with all of the Standards, as well as a process of assessment and self-reflection by the schools. Schools are required to develop a written self study that includes the school’s mission statement, describes its program of legal education, evaluates the strengths and weaknesses of the program in light of the school’s mission, sets goals to improve the program, and identifies the means to accomplish unrealized goals. In addition to the self study, law schools are required to submit answers to a site

evaluation questionnaire which asks a series of questions about s law school’s history and current operations. The self study and questionnaire provide the framework for the accreditation site visit and report. A team of volunteers, composed of faculty members and a dean from other law schools and at least one person who is not a law academic, visit the law school and submit a detailed report to the Section’s Accreditation Committee. That committee does a thorough assessment of the school, asks the school to address any shortcomings, and ultimately makes a recommendation to the Section’s Council with regard to accreditation or continued accreditation of a school. A new law school that receives provisional approval is subject to annual site evaluations until full approval is granted, and this process must be completed within five years. Once accredited, law schools must be reaccredited every seven years. Despite the seven year interim, schools are nonetheless required to respond

to the annual questionnaire, which is similar to the site evaluation questionnaire’s request for information about current operations, including enrollment, bar passage and how the school is otherwise meeting the Standards. Apart from the ABA’s mandatory accreditation requirements, virtually all law schools seek voluntary membership into the Association of American Law Schools (AALS) and the AALS has a variety of membership requirements. As described by former AALS Executive Director and Deputy Director, Carl Monk and Harry G. Prince: When the AALS was founded in 1900, there were only four membership requirements: 1) students admitted to law study had to have completed a high school course of study or its equivalent; 2) the law school course of study had to cover at least two years of thirty weeks per year; 3) law schools had to establish some method for examining students to determine their competence prior to their graduation from law school; and 4) the law school had to have

convenient access to a law library. As the AALS has grown, and as legal education has advanced, the membership standards have also developed to address more areas of a schools academic program. When considered together, all of the membership requirements are designed to achieve the same objective--that all of the Associations member schools will offer quality instruction and support legal scholarship in an intellectually vibrant environment that is free from discrimination on improper grounds and that protects academic freedom. … The six core values identified by AALS member schools are teaching, research, maintaining an intellectual community (including intellectual and cultural diversity), assuring academic freedom, establishing a sound governance structure, and sustaining a commitment to justice and public service. Secondary concerns include those that relate to sustaining the academic enterprise through 7 maintenance of a sound infrastructure (personnel, library support,

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physical facilities, and financial support). To effectively pursue the core membership requirements, a school must have physical facilities, library resources, and a faculty that is adequate to pursue its teaching and research missions. The schools must apply standards for admission that will produce students capable of successfully completing the academic program, and the schools operations must be free of discrimination on impermissible grounds. 2 Approximately 28 of the 210 ABA accredited schools have not yet achieved membership in the AALS by meeting the above requirements and criteria. Today, the ABA Standards address five substantive areas concerning a law school’s curriculum and operations: organization and administration; program of legal education; faculty; admissions and student services; library and information resources; and facilities. The Standards addressing the organization and administration of law schools include matters such as the relationship between the law

school and university, the need for strategic planning, law school governance and the allocation of authority between dean and faculty, non-discrimination, equal opportunity, and diversity for students, faculty, and administrative staff. The program of legal education Standards include requirements for the curriculum both in terms of content and measuring achievement. The faculty Standards include regulations concerning faculty qualifications, the size of the full-time faculty, the responsibilities of full-time faculty, the instructional role of faculty, and the professional environment. The admissions and student services Standards outline educational requirements for law school applicants, basic consumer information about the law school, student loan programs, and student support services. The Standards focusing on the library and information resources covers qualifications for the law library director, the content of the library collection, personnel, and services requirements. The

final substantive section focuses on facilities, and these Standards discuss the need for sufficient space for classrooms, research, study, and technological capacities. The various ABA Standards and AALS membership requirements provide broad parameters for legal education, leaving room for considerable flexibility in how law schools construct their programs. They are prescriptive in curricular areas that law schools have not traditionally prioritized, such as the requirements for legal writing courses in the first year and an additional upper level writing course, teaching professional skills, teaching the “values, rules and responsibilities of the legal profession,” and providing substantial opportunity for live-client or other real-life practice experience. 3 Beyond that, law schools are expected to make the subject matter relevant to the educational mission. Despite this authority, law schools have followed a similar path. As we discuss below, the curricula of most law schools,

especially in the first year of law school, is virtually indistinguishable from school to school. In the second and third years, students take an array of courses, with choices in course selection often influenced by what subjects, beyond the first year courses, are expected to be on the bar examination each student expects to take. A school may be influenced by a strong social justice commitment, religious affiliation, economics, or other perspectives, but the approach is not significantly affected. With 2 Carl Monk & Harry G. Prince, Symposium: A Global Legal Odyssey: How Can an Association of Law Schools Promote Quality Legal Education? , 43 S. TEX. L. REV. 507, 508-09 (2002). 3 ABA Standard 302. 8 some notable exceptions, graduation from a law school in the United States is a fairly uniform experience, enhanced by the faculty, support, and setting, but not by curriculum. D. Legal Education Curriculum and Methodology Although preparing law students to become effective,

ethical lawyers is the announced goal of law schools, the course of study at most U.S. law schools does not necessarily reflect a sequence of courses designed to teach and train students to be lawyers. Instead, U.S. law schools have a heavy emphasis on teaching legal doctrine and legal analysis. Doctrinal courses dominate most law school curricula. In addition to emphasizing legal doctrine, most law school courses focus on the lawyering skills of legal analysis and problem solving. Courses focusing on other necessary lawyering skills and professional values are much fewer in number than doctrinal courses. As mentioned previously, the ABA Accreditation Standards require relatively few law school courses. The Standards require each student to receive substantial instruction in legal analysis and reasoning, legal research, problem solving, and oral communication. The typical first year curriculum fulfills these requirements. The Standards also require every student to take an ethics

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course, a rigorous writing experience in the first year, and an additional rigorous writing experience after the first year. Law schools usually fulfill the second writing requirement by requiring students to enroll in writing seminar courses in which law students research and write papers on various legal issues that the faculty teaching the seminars approve. These required areas of instruction in the Standards reflect an effort by the ABA to ensure that every law school graduate will receive some education in areas necessary to become effective and responsible participants in the legal profession. This includes instruction in substantive law, though the law schools may decide which substantive law courses to require. Legal analysis and reasoning, legal research, problem solving, oral communication, writing, some other professional skills instruction, and legal ethics are all essential to become an effective lawyer. The Standards also require substantial opportunities for students to

take live-client or other real-life practice experiences in law school, participate in pro bono activities, and engage in small group work through seminars, directed research, small classes, or collaborative work. These requirements are also important to educating law students to be effective, responsible lawyers. While the Standards identify these various subjects and teaching methodologies as ones that every law school must include, the Standards do not specify the exact content of the courses or exactly how law schools must employ the teaching methodologies. Because the ABA Standards do not specify the exact content of the curriculum and required courses, the Standards permit variation among law schools. The variation is, however, rather modest. Most law schools have the same or similar courses, and the course of study is organized in similar fashion for most law schools. Usually, law schools have a limited number of required courses, typically 30 to 40 percent of the courses

required for graduation. The rest of the courses are electives for students. 9 Most of the required courses are part of the first year of the three year full-time law school curriculum. The typical required doctrinal courses in the first year of law school are: Civil Procedure, Constitutional Law, Contracts, Criminal Law, Property, and Torts; there is also a required writing course, typically called Legal Writing, Analysis, and Research. In addition, every law school requires a course in legal ethics, usually called Professional Responsibility or Legal Profession, which is usually required during the second year of law school or required to be completed during the second or third year of law school. These are the typical required courses because law faculty and practicing lawyers believe that these courses represent the core areas of substantive law, legal research and writing, and ethics necessary to be an effective lawyer. The doctrinal courses in the first year are considered

building blocks for other substantive areas of law, and the teaching methodology in first year courses focuses on legal reasoning and problem solving by students as much as the subject matter of the courses. Apart from the largely doctrinal curricula described above and their focus on the lawyering skills of legal analysis and problem solving, the ABA Standards require every student to receive “substantial instruction” in other professional skills. “Substantial instruction” is not clearly defined in the Standards, but the ABA appears to approve as little as one credit worth of instruction in professional skills as satisfying the skills requirement. Most law schools satisfy this skills requirement by permitting students to choose from among a list of lawyering skills courses offered in the school’s curriculum. Law schools utilize three primary types of courses to teach a wider array of lawyering skills than those taught in the required curriculum: simulation courses, clinical

courses and externship courses or external placements. Simulation courses employ a teaching method in which students are put into simulated or hypothetical lawyer roles to perform some aspect of the lawyering process in a controlled setting that is reviewed and evaluated by the professor. Many schools include a simulated moot court requirement in first year research and writing classes, requiring students to prepare a brief in a hypothetical case and present an oral argument on that case against another student. Most schools have an elective simulation course in trial advocacy or trial practice. Other common simulation courses include appellate advocacy, negotiation, interviewing and counseling, fact investigation, alternative dispute resolution and mediation. Clinical courses are usually referred to as “in-house” clinics, to distinguish them from externships, because they typically involve representation of clients in an internal or in-house law office created by the law school

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for the purpose of providing contextual experiential learning opportunities for students. They are also often referred to as “live-client” clinics, to distinguish them from simulation courses because the clients and cases are real, not hypothetical. Students are usually given substantial authority for handling actual legal matters in real cases with instruction, evaluation and critique provided under close supervision by the clinical professor. Every state has a student practice law authorizing law students to engage in the practice of law under law faculty supervision. Clinics include a classroom component to teach, among other topics, lawyering skills, applied substantive law, ethics and professional values arising from or utilized in the actual casework. While most clinics represent clients in litigation or other contested proceedings, a growing number of law schools have clinics in transactional practice, 10 mediation, legislation or other non-litigation settings. Clinics

are sometimes organized with a focus on particular subject areas such as criminal defense, family law, non-profit or small business organizations, general practice or environmental law. Others are organized around identified legal problems of particular often underserved client populations such as immigrants, children, or elderly or disabled persons. Client representation is usually limited by clinic mission and student practice laws to those individuals or organizations that lack the resources to hire a lawyer. In externship courses, students are placed in professional settings external to the law school, such as law offices within governmental agencies, non-profit and non-governmental organizations, and judicial settings. Students work on real cases and projects under the supervision of a lawyer or judge at the external setting and the work is coordinated by a faculty member at the law school. Law schools often attempt to create a three-way relationship between the professor, student

and external supervisor, to facilitate the professor’s monitoring of the student’s work and the supervisor’s and professor’s evaluations of that work. A common goal of externship courses is reflection and critique upon the work observed and assisted in the external placement through the use of reflective journals, regular meetings with the coordinating professor and, in some cases, an externship seminar class and class discussions. Although these three types of experiential law courses are often described as separate and distinct pedagogical models, some schools have created courses that may possess elements of some or all of these approaches. For example, there are hybrid clinics/externships that combine features of in-house and external placement programs. In a hybrid program, the law school creates a partnership with the external law office and the students are supervised by both a full time clinical professor and lawyers from the external law office. In addition, clinical

faculty often utilize simulation methodology in teaching lawyering skills in the clinics’ classroom components. The ABA Standards require a minimum of 58,000 minutes of instruction, of which at least 45,000 minutes must be by attending regularly scheduled class sessions at the law school, including in-house clinical courses. 4 In converting the minute requirements to academic credits, most law schools usually require 700 minutes of instruction time per “credit,” exclusive of time for examinations. This means that a law school must require at least 83 credits for graduation. Most law schools exceed this minimum and require between 86 and 90 credits for the J.D. The curriculum must be taught predominantly by full-time members of a law school’s faculty. Full time faculty are expected to shoulder responsibilities for a fair share of the law school’s course load, but also to be available for student consultation, to produce research and scholarship, to participate in governance

of the school, and to provide service to the public and the profession. Faculty must possess a “high degree of competence” for the demands of the position but the standards do not specify precise objective qualifications for these positions. 5 Most faculty possess a college degree (B.A. or B.S.) and the initial graduate law degree (J.D. or 4 5 ABA Standard 304. ABA Standards 401-404. 11 L.L.B.). An increasing number of law faculty have pursued additional graduate study or graduate degrees beside their initial law degrees. In 1992, the ABA published the Report of the ABA’s Task Force on Law Schools and the Profession (known as the MacCrate Report), which identified ten lawyering skills and four professional values as fundamental for all members of the legal profession. The ten fundamental lawyering skills are: (1) Problem solving; (2) Legal analysis; (3) Legal research; (4) Factual investigation; (5) Communication; (6) Counseling; (7) Negotiation; (8) Litigation and

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alternative dispute resolution; (9) Organizational, administrative and time management skills; and (10) Recognizing and resolving ethical dilemmas. The four fundamental values of the legal profession: (1) Competent representation; (2) Striving for justice; (3) Striving to improve the profession; and (4) Professional self-development. The MacCrate Report made three important findings. First, that law schools could do more to prepare students better for the practice of law. The principal area where law schools needed to improve was by placing a greater emphasis on skills training beyond the legal analysis, writing, research, and problem solving instruction required in most law schools. Second, clinical legal education can and should play a key role within law school education around lawyering skills and professional values. Third, learning in the law is a lifetime pursuit, and learning after graduation is expected. Legal employers and professional legal organizations, such as state and

local bar associations, have some role to play in this part of professional development. There is general agreement among members of the legal profession, including a substantial number of law faculty, that the MacCrate Report reflects the fundamental lawyering skills and professional values necessary to be an effective, ethical lawyer. While some members of the legal profession have argued that some of the skills and values could have been described differently, they have not disputed the underlying thesis that there is a basic set of lawyering skills and professional values important for the effective, ethical practice of law. There has been disagreement concerning some of the other recommendations of the MacCrate Report. The largest point of disagreement has been over the role of law schools, with many faculty arguing that the legal profession is asking law schools to do too much practical training and practicing lawyers and judges contending that law schools are doing too little.

There has also been a corresponding division of opinion on the role of clinical legal education. Some faculty believe that clinical education is not that important, and that law graduates should be able to receiving the lawyering skills and professional values education in their first jobs. Other faculty, primarily consisting of those teaching clinical courses, emphasize that only by immersing law students in the role of a lawyer by representing clients, under faculty supervision, may law students receive an adequate introduction to necessary skills and values. Because of the division of opinion, and the dominance of the role of legal doctrine and theory among law faculties, few law schools in the U.S. have organized themselves to require each student to receive instruction in all of the lawyering skills and professional values identified in the MacCrate Report. Furthermore, despite the fact that the MacCrate Report was issued by the ABA, its Section of Legal Education and Admissions

to the Bar did not incorporate the MacCrate Report findings into a substantial change in the way schools should approach legal 12 education. Law school deans dominate the process for creating the ABA Standards, and many deans believed that each law school should be free to adopt or reject the MaCrate findings and that Standards should not require more of law schools. Indeed, it took more than ten years after the MacCrate Report was issued for the ABA to amend the Standards to require some lawyering skills instruction in addition to legal analysis, research, and writing. As discussed above, accreditation requirements regarding professional skills and values are quite modest. While most law school curricula include courses that address most, if not all, of these skills and values, they leave it to individual students to choose which of these skills and values they will study while in law school. For example, a handful of law schools, less than 10 percent of all law schools, require

students to take a clinical course. Although there has been no systematic study of courses law students take, anecdotal evidence and studies at some law schools indicate that approximately 75-80 percent of the courses law students take while in law school are doctrinal. National data collected by the ABA approximate that only 35 per cent of students nation-wide take at least one clinical course. There are a number of factors that limit participation of students in clinical or other practical skills courses. First, cost and resource allocation is a significant limiting factor. Considerably lower student-teacher ratios are needed for appropriate learning and teaching in most skills classes than in the typical law school large lecture class. Indeed, low student faculty ratios are an ethical imperative in courses involving the representation of real clients to ensure appropriate representation of clients. The AALS has suggested that an appropriate ratio is no more than 8 to 10 students for

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each full time clinical professor. As a result, most law schools do not allocate sufficient financial resources to hire and/or assign enough faculty to provide clinical opportunities for all students and place significant restrictions on the number of students who may enroll in any practical skills course. Second, some schools limit the number of skills courses students can pursue in order to gear their curricula to the doctrinal courses on which law graduates are tested in the bar examination in an effort to promote a higher bar passage rate. This practice has diminished somewhat as empirical studies of the relationship between participation in such substantive courses and bar passage have not supported such a curricular focus. Third, some schools limit the number of clinical credits a student may take due to a restriction of the New York Bar that limits to 20 credit hours the number of credits in “courses related to legal training or clinical courses” that can be counted toward

the 80 minimum credit hours required for admission to the New York Bar. 6 Even in schools that do not limit clinical or skills course credits based on the New York Bar rules, students interested in practicing law in New York must so limit themselves. Because New York has the largest legal community in the country, its antiquated bar admission requirement has an impact beyond its borders. Finally, ABA standards are a factor. Although under ABA standards, clinical courses can be included within the 45,000 minutes of regularly scheduled classroom time needed to meet the 58,000 minute requirement for graduation if such courses contain a classroom component, 6 N.Y. Ct. App. Rule 520.3(c) (1)(i). 13 are taught by faculty members whose principal employment is with the law school and award credit commensurate with the time and effort required and anticipated educational benefit, 7 other out of the classroom practical courses that do not meet these requirements (i.e externships) are

limited to the remaining 13,000 minutes of available instruction time. Students often exhaust this limited out of the law classroom allocation of minutes on credits for journals, independent study and interdisciplinary offerings and have very limited remaining time for externships. Passage of the bar and licensure means that the law school graduate can open an office and begin to represent any client who walks in the door. Although the lawyer is ethically constrained to handle only the matters he or she can effectively manage, new lawyers with little or no experience in any area of practice often begin practicing on their own and undertake matters for which they are not yet qualified. State bar associations often offer bridge the gap continuing legal education courses and networking for new lawyers. Nonetheless, it is troubling that the gap to be bridged between the theory emphasized in law school and the practice that graduates engage is so great. II. Goals of Legal Education A.

Overarching Goals of Legal Education: Relationship Between Legal Education and Professional Career The primary goal of legal education in the United States is to prepare students for the practice of law. Most law schools acknowledge this goal in a mission statement, and ABA Accreditation Standards provide that: “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.” 8 However, the primary emphasis of most law schools has been on providing a legal education that helps to prepare students to pass a bar examination and less attention has been paid to preparing students to be effective and responsible participants in the legal profession. Every state and territory requires passage of a bar examination in order to practice in the jurisdiction, with the exception of the state of Wisconsin which grants licensure without examination to graduates from its two law schools.

To the extent that law schools reflect on their teaching and academic programming, it is in response to drops in bar passage rates. In the event of such a drop, schools have been known to increase or add academic support programs and encourage faculties to align their teaching agendas with issues addressed on the relevant state bar examinations. They usually require little more. Indeed, given the symbiotic relationship between classroom and bar passage, there is little need to do much more. State bar examiners appeared satisfied with designing examinations that test legal doctrine and reasoning rather than additional lawyering skills important for the effective practice of law. As a result, state bar examiners reinforce that successful law schools need not prepare students better for the practice of law. There is no organized connection between a state’s bar examiners and the ABA or other stake holders who seek to promote greater preparation for the 7 8 ABA Interpretation 304-3(e)

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ABA Standard 301(a). 14 practice of law for new lawyers. However, increasingly, jurisdictions have incorporated a practice component to their bar examinations, reflecting concerns about professional competence. Unlike students who study law in many other countries as basic preparation for other fields of work, bar passage rates and employment patterns have historically demonstrated that students who graduate from law school who wish to be qualified to practice law are able to do so. Even if particular law schools mention the broader utility of a legal education as preparation for employment in other fields, most law school mission statements emphasize a principal focus on preparing students for the practice of law. It is estimated that 95 percent of law graduates eventually pass a bar exam, which entitles them to practice law in one or more states (each state has its own bar exam, though there is reciprocity among some states and some law graduates take multiple bar exams). An

employment study in the early 1990s reported that nearly 82 percent of law graduates admitted to practice law were working as lawyers and judges. This study also demonstrated that the legal employment rates were virtually the same for female and male law school graduates. The study found that less than two percent of law school graduates were involuntarily working outside of the legal field. This employment study has not been replicated since the economic downturn of 2008, but anecdotal information is that a much larger, unknown percentage of law graduates, especially recent law graduates, are involuntarily working outside of the legal field. Still, it is expected that a majority of law graduates will seek and obtain legal employment. B. Perceptions of Stakeholders on How Well Law Schools Are Achieving Their Goals There has been a division of opinion among stakeholders (private and public legal employers, students, law faculty, and the public) on how well U.S. law schools achieve the

goal of preparing students for the practice of law. Most legal employers and students believe that law schools can and should do a better job of preparing students for the practice of law. A sizeable number of law faculty believe that law schools are doing an excellent job of providing law students with a grounding in legal doctrine and legal methods, and that legal employers should have the primary responsibility for training graduates in the lawyering skills necessary to be effective lawyers. While the lawyers and judges consistently criticize law schools for the lack of professional preparation of law students, law firms and other legal employers continue to hire graduates who excel in substantive law classes, and few legal employers, outside of public interest employers, express a preference for clinical and other practice-based experience. Many employers did not have access to clinical or other practice skills courses while in law school and hire candidates with similar

educational experiences and profiles to themselves. Many firms follow the tradition of training new lawyers to do the lawyering tasks assigned, relying on the research, analytical and writing skills that the lawyers have acquired along with the ability to learn quickly from what is in effect a highly paid apprenticeship. Even with the economic pressures that led to reduced hiring since 2008, firms seek the same demographics for graduates that they hire. 15 In 2007, two important books critiquing U.S. legal education were published. The first, Educating Lawyers, a Carnegie Foundation for the Advancement of Teaching report, concluded that the study of law required emphasis on three apprenticeships: acquisition of formal knowledge; development of practical skills; and development of professional identity in which formal knowledge and practical skills are integrated to focus on developing ethical, competent legal professionals. The Carnegie report concluded that law schools were very

effective in teaching students, especially in their first year, the formal knowledge and legal analysis necessary to be effective lawyers. The Carnegie report was very critical, and faulted law schools, for not integrating the teaching of practical skills throughout the curriculum and for doing little to assist students in developing their professional identities. The second book, Best Practices for Legal Education: A Vision and a Road Map, sponsored by the Clinical Legal Education Association (CLEA) and primarily authored by Professor Roy Stuckey of the University of South Carolina, recommended a series of steps for law schools to improve their programs of legal education in order to better prepare students for the practice of law. The premise of Best Practices is that U.S. law schools can and should do more to prepare students to become effective, ethical lawyers. The critiques of U.S. law schools found in the Carnegie report and Best Practices are not new. Private and public legal

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employers and law school graduates have long complained that law schools should do more to prepare new lawyers for the practice of law. In the 1960s, student demands for more exposure to putting legal theory into practice helped spur the development of clinical legal education, which received much support of the practicing bar. However, the majority of law professors teach doctrinal courses and many have been resistant to rethinking legal education. Many stakeholders agree that legal education in the U.S. has improved in the last fifty years, and clinical legal education and the introduction of more lawyering skills courses are offered by some as signs of the improvement. While efforts to incorporate more lawyering skills instruction have been important to preparing law students better for law practice, law schools in recent years have tended to hire fewer full-time law faculty with practice experience. Indeed, many law schools have focused on hiring more faculty with advanced degrees

in other disciplines, such as history and political science, some of whom do not have law degrees and others who, although they have law degrees, have never practiced law. At some of these law schools, most of the lawyering skills training is provided by practicing attorneys and judges who usually teach one course a year as adjunct law faculty members. C. Evaluation of Goals of U.S. Law Schools The regulatory scheme in the U.S. permits a wide variance in approaches by law schools. The ABA Standards encourage far more than they require. In addition to the ABA Standards, the highest court in each state has the regulatory authority to establish course requirements for bar applicants, but the high courts usually do not impose law study requirements. As a result, law schools are generally free to establish their own course of study content and goals. Thus, the 16 degree to which each law school prepares its students for the practice of law is essentially left to the law school to

determine. The Carnegie report and Best Practices both advocate for substantial changes in U.S. law schools to prepare students better for the practice of law, which, in turn, would better serve both legal employers and individual clients. Most law schools, however, have not implemented sweeping changes in response to the calls for reforms, and only a small handful of the more than 200 ABA-accredited law schools have implemented relatively modest changes thus far in response. While the publication of these two books has generated a great deal of discussion, there has not been a significant push by any group of stakeholders for more substantial changes, and no specific set of reforms has been identified beyond the general call to integrate more lawyering skills training throughout all three years of law school. D. Ability of the Legal Education System to Reform Todays method of teaching law students is not a model of maturation and modernization; it is older than the telephone, the game

of basketball, blue jeans, and Coca-Cola. For more than one hundred years, the primary source of training in legal practice skills and management skills has been the lawyers own experience, law-related work during law school, and observations of other lawyers. This training is not provided by the law school curriculum. More than one hundred years ago lawyers received most of their training by themselves outside the classroom. They continue to do so today. 9 In the 1870’s, Harvard Law School Professor Christopher Langdell introduced the casebook method of teaching law. This method of teaching, coupled with the Socratic dialogue method introduced by Columbia Law School’s Theodore Dwight, intentionally moved legal education towards academic recognition and standing. The approach is seen as legitimating academic status, and has fostered a strong resistance to change. This is so despite decades of high level studies calling for change and critique by judges, practitioners and a growing

number of legal educators. The ABA Accreditation Standards suggest that practice-based learning should be a significant part of the educational experience of law students, but law schools rarely focus on the wide range of practice skills much less make any practice-based learning central to the academic program. Many law students graduate without ever having participated in practice-based learning. Moreover, the ABA Standards which encourage greater institutionalization of practicebased learning through greater integration of practice-based faculty into the polities of American law schools and greater equality of terms of employment, have confronted significant resistance by some law school deans and administrators. Part of the resistance has been a reluctance to recognize clinical and practice skills legal educators and scholars as comparably valued partners in the pursuit of a law schools’ institutional goals. 9 John O. Sonsteng, Donna Ward, Colleen Bruce, Michael Petersen, A

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Legal Education Renaissance: A Practical Approach for The Twenty-First Century, 34 WM. MITCHELL L. REV. 303, 318-319 (2007) 17 In spite of the resistance to change, many law schools have increased the profile of and commitment to practice-based learning as optional or elective courses for students. The most significant commitment has been to developing and expanding clinical programs, especially the live-client clinics. Although only a small number of law schools require all law students to take a live-client clinic, many more law schools have a wide range of live-client clinic offerings that students can choose to take. In addition, many schools also offer externship placements and some offer externships exclusive of other clinical experiences. The ABA is considering significant changes to the Standards. One of its goals is to move legal educators towards a more reflective process by requiring greater attention to educational outcomes. The only outcome assessment that is

considered in law school accreditation at present is performance on the state bar examinations. The idea is to make the teaching more intentional by encouraging a rethinking of teaching goals and assessment of whether the goals have been met. Whether this will in turn yield significant change in how legal education in the United States is approached, or whether the growing attention to adult learning, ongoing disconnect between legal education and professional practice and market forces will yield the intended result despite the accreditation process remains to be seen. References: 2009-2010 Standards and Rules of Procedure for Approval of Law Schools: http://www.abanet.org/legaled/standards/standards.html ROY STUCKEY (2007) ET AL., BEST PRACTICES WILLIAM M. SULLIVAN, LAW (2007). ET AL., FOR LEGAL EDUCATION: A VISION EDUCATING LAWYERS: PREPARATION AND A FOR THE ROAD MAP PROFESSION OF The AALS Directory of Law Teachers 2009-2010 Clinical Legal Education Association’s

Comments to the ABAs Standards Review Committee on possible revisions to ABA Accreditation Standard 405(c), June 24, 2010: HTTP://WWW.ABANET.ORG/LEGALED/COMMITTEES/STANDARDS%20REVIEW%20DOCUMENTS/CLE A%20HISTORY%20OF%20405C%20COMMENTS%20TO%20ABA%20STDS%20REVIEW.PDF Margaret Martin Barry, Jon C. Dubin, & Peter A. Joy, Clinical Education for This Millennium: The Third Wave, 7 CLIN. L. REV. 1 (2000). Elliot S. Millstein, Clinical Legal Education in the United States: In-House Clinics, Externships, and Simulations, 51 J. LEGAL EDUC. 375 (2001). 18 Philip G. Shrag, Federal Student Loan Repayment Assistance for Public Interest Lawyers and Other Employees of Governments and Nonprofit Organizations (2007): http://www.law.georgetown.edu/news/releases/documents/Forgiveness 000.pdf Racial diversity in legal education: http://blogs.law.columbia.edu/salt/ Comprehensive Guide to Bar Admissions: http://www.ncbex.org/comprehensive-guide-to-bar-admissions/ Official Guide to ABA Approved Law

Schools: http://officialguide.lsac.org/ 19