Sunday, July 7, 2013

Why the ABA Should Grant CLEA's Petition to Require 15 Hours of Skills Courses

As this blog has previously noted (here), the Clinical Legal Education Association has petitioned the Council of the American Bar Association’s Section for Legal Education and Admissions to the Bar to require law schools to offer 15 hours of experiential education in the second and third years.  I believe that the ABA should grant this petition.  Today's post will give reasons for supporting the petition based on CLEA's reasoning.  Part II will show how CLEA's petition is supported by general education research.

Some excerpts from the CLEA Press Release (here):

"Repeated ABA studies have shown the need to enhance significantly the professional skills training of students in law schools. However, the Section has done very little to address these persistent calls for reform. Current law school accreditation standards only require a single credit of experiential learning out of an average of 89 total academic credits, a dismal 1% of a law student’s preparation for practice. Other professions (such as medicine, pharmacy, dentistry, veterinary, social work, etc.) require that at least one quarter, and up to more than one half, of a graduate’s pre-licensing education be in role in supervised professional practice."

"The Council has a duty, as the agency approved by the U.S. Department of Education for the accreditation of law schools, to ensure that its standards meet the training needs of law students and the interests of the public. CLEA contends that the present standards do not adequately prepare students for the practice of law and that 15 hours of professional experience (representing about one-sixth of a student’s total credit hours) are certainly the minimum necessary to ensure that law school graduates are competent to begin practicing law. Concerned that the ABA was not doing enough, the California State Bar Task Force on Admissions Regulation Reform recently proposed a similar pre-admission practical skills training program for all law students seeking admission to the California bar."


"The educational case for requiring every law student to have significant experiential training is no longer seriously debated. A long line of reports by ABA special committees, beginning with the 1979 Report and Recommendation of the Task Force on Lawyer Competency: The Role of Law Schools ("Compton Report") and including the well-publicized 1992 Report of the Task Force on Law Schools and the Profession ("MacCrate Report"), have urged much greater attention to professional experiences in law school curricula. Recent law graduates have also voiced strong support for clinical and experiential legal education. The ABA’s 2004 After the JD report surveyed recent law school graduates. When asked what was most helpful in theirtransition to practice, they highlighted professional skills training: legal employment during summers and school year, clinical courses, legal writing courses, and internships. Lagging behind were the doctrinal courses that still dominate legal education. Two recent studies from the National Association for Law Placement (NALP) demonstrate the importance of requiring law clinic or externship experiences for all students. In a survey of new nonprofit and government lawyers, more than 83% rated legal clinics as "very useful" in preparing them for the practice of law, with externships/field placements rated as "very useful" by 72%.  In a similar survey of new associates in private law firms, almost two-thirds (63%) rated legal clinics as "very useful," followed closely by externships/field placements (60%)."

"The Task Force is right to look to other disciplines for guidance. The comparison is stark and instructive as the professional education training and licensing of lawyers falls far behind the other professions. Other professions require that at least one-quarter, and up to more than one half, of a graduate’s pre-licensing education be in-role in supervised professional practice."

"The suggestion made by some commentators that law schools should focus on learning to "think like a lawyer" and leave development of other critical lawyering skills to law graduates’ first jobs is wrong. While this argument may make sense in countries such as Australia, Canada, and the United Kingdom, where only a small fraction of students obtaining a law degree seek admission to practice, it does not make sense in the United States where a large majority of law school graduates take the bar. Unlike other countries, the primary focus of legal education on legal analysis and legal doctrine is misplaced in the United States where there is no required apprenticeship to qualify for legal practice as there is in these other countries. In the United States, a law school graduate can currently be licensed to practice law in all states without additional pre-admission practice or training."

The absence of substantial opportunities for clinical legal education in many schools and for many students leaves the responsibility and cost of preparation for practice to employers, clients, and law graduates themselves. They simply are not likely to get that preparation in the current rapidly evolving legal job market. Few legal employers have well-structured programs to train new lawyers. Many law graduates open solo practices as soon as they pass the bar, and in the current economy this trend is growing. Insufficient exposure to professional skills and values during law school can extract a heavy toll on clients. Lack of practice preparation also weighs heavily on the new lawyers themselves, many of whom find themselves ill-equipped by a legal education that has left them tens of thousands, if not more than a hundred thousand, of dollars in debt. The current approach allows law schools to shirk their responsibility to prepare students for the ethical, effective practice of law. Finally, law schools’ failure to provide appropriate skills and values can cut strongly against racial and economic diversity by disparately disadvantaging insufficiently prepared new lawyers who may not have equal access to alternative training opportunities. Although the Invitation to Comment did not explicitly identify diversity in legal education as a matter of concern, we trust that the Task Force will carefully consider the impact any proposed changes would have on diversity."

"A few comments submitted to this Task Force suggest a two-year J.D. degree or otherwise reducing the required timeframe in legal education. Those who argue that legal education is inadequate, not too long, have the better position. Law graduates are not prepared for practice; they need a guaranteed minimum of professional practice experience before graduating from law school. Legal education must join the other professions described above, which all require that at least one-quarter, and up to one half, of a graduate’s pre-licensing education be in-role in supervised professional practice. The Task Force should recommend that students take at least 15 credits of courses in the second and third years of law school, one-quarter under the current structure, in clinical, supervised externship, or professional skills courses."

"In addition to requiring that at least one-quarter of a law student’s professional education be in practice-based, experiential courses, the accreditation standards should require that every graduating J.D. student take a law clinic or externship course."

"With respect to the relationship between the cost of legal education and ABA accreditation standards, the U.S. Government Accountability Office recently found that "ABA accreditation requirements appear to play a minor role" in driving the cost of law school education. Indeed, as noted above, a number of schools have managed to innovate and to focus more of their curriculum on professional skills within (and despite the absence of encouragement from) the current standards and without driving costs up more than at schools that lack such innovation and focus. For example, Washington and Lee’s experience requiring 20 credits of experiential coursework in the third year has not increased their costs: 'the new curriculum is not more expensive to run than the prior third year curriculum, nor the current first or second year curricula.""

(Scott Fruehwald)

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Forgive the length. The following is a brief excerpt from an article I published a year or so ago in The Journal of the Legal Profession. It attempts to offer a somewhat richer critique of what "thinking like a lawyer" actually means and why we don't do all that well at the task. If anyone wants to see a draft version of the entire piece electronically let me know and I will send it to you.


III. “Thinking like a Lawyer”

There is a long-standing idea that the central educational goal of a legal education is to teach students to “think like lawyers”. Of course this formulation is a vague or perhaps even a meaningless one, at least unless we are able to clearly specify what is involved in the process and then describe and develop the kinds of effective educational methodologies and subject matters that must be part of the complex package. The problem is that we really do not know what it is to “think like a lawyer”, nor have we done the hard work (as an overall educational system) necessary to understand what methods and experiences work most effectively to achieve the stated ends. We casually conclude that we do in fact achieve the goal as supposedly effective teachers even though there is ample evidence to support the proposition that there is relatively little connection between what we do and what we claim to be our responsibility and educational goals.

I often feel that one of the most practical courses I ever taught in law school was Jurisprudence as a First Year elective. The reason for this conclusion is that political and moral philosophy underlies the very substance of law. This includes the decisions of judges who interpret (and sometimes create) the law and legislators who enact law. It includes bureaucrats and regulators who, in a system such as the modern regulatory state that we have developed, are a major component of law creation, application and interpretation. In many instances these actors are not consciously aware that they are relying on the principles of ancient philosophers such as Aristotle, Plato, Aquinas, Pufendorf, Grotius, Locke and Hobbes, Rousseau, Kant or Hume (to name a few). Educating law students in the body of fundamental assumptions and concepts that underlies our law creates a conceptual structure that enables them to interpret, understand and apply law with a fluency and depth of understanding they would otherwise not achieve.

Without that conceptual structure the field of law as mixture of substance, process and performance is idiosyncratic with the various pieces remaining largely disparate and disconnected. With such a structure it begins to possess an internal consistency that allows the law student to recognize, compare and distinguish the competing positions being articulated by legal actors. This creates an ability to better understand what others are assuming as the ground of their logic and further offers the capability to fashion arguments that “fit” within the conceptual structure of those who must be persuaded. This is the beginning of real understanding that allows the more technical skills learning to be translated into a coherent and effective system fully within the control of the lawyer.

Yet even though the logic of philosophy, technique and values seems compelling the law schools have not offered such an approach with any degree of consistency. They have not been effective at communicating a philosophical and interpretive system, have generally failed to offer a full set of the introductory skills of the lawyer to their students, and have allowed the “values” part of the educational process to be captured by the oppressive demands of an absurd test—the MultiState Professional Responsibility Examination—that forces the law teacher to prepare students for a nationally required ethics examination based on rules of ethics that are rarely applied and that have very little to do with the moral and ethical dilemmas of law practice. This of course is the constant danger of mandated educational rules that, in theory, seek to solve a real or perceived problem but that create their own negative consequences.

The simple fact is that legal education in America is no search for knowledge in its highest realms but an ill-defined hybrid undertaking. Law schools have benefitted enormously from the monopoly over entry to the legal profession granted to law schools by the American Bar Association and state supreme courts. Zemans and Rosenblum observed that: “With formal legal education maintaining a virtual monopoly over preparation for entry into the legal profession, it is assumed that law schools are or ought to be the primary source of the skills and knowledge requisite to the practice of law.” Posed in this way it is difficult to deny the assertion.

Listening to the laments of American law professors concerning the loss of the grand intellectual purpose of university legal education and its subordination to “technical”, “practical” or “skills” education would produce a corresponding compassion were it not for the fact that law schools in America have always been focused on skills and technical matters while seeking to define their approach as theoretical. It is this denial of reality that has led to a confused and incomplete educational model. American law faculty are admittedly unwitting examples of the false wizard in the Land of Oz, claiming to be one thing while hiding what is actually done behind a mask of pomp and circumstance intended to give an aura of intellectual grandeur. The problem is that we have deceived even ourselves about the majesty of what we do in our teaching and scholarship and actually believe that what we do is something profound.

The truth is somewhat bleak. We are “neither fish nor fowl” when it comes to intellectual substance and meaning. There are some areas of law in which deeper intellectual substance can be seen. Inquiries into matters of justice and injustice, analysis of the interplay of social needs, politics and constitutional doctrine and democratic philosophy offer examples. But the simple fact is that virtually all of the material in areas such as contracts, procedure, tax, corporations, criminal law, evidence, business associations, patent law, estates and trusts, property and much more is clearly technical analysis and information transfer. How on earth such subject matters can be claimed to represent higher order bodies of knowledge as opposed to the basic subject matters lawyers will or may need when in practice is unfathomable.

Of course they are legitimate parts of an academic-professional education in some form. And a degree of philosophical or even social scientific inquiry into the role, underlying values, efficiency, fairness and legitimacy of the doctrines and operating systems by which they are developed and applied is unquestionably appropriate in some form and perhaps more coherently than is now done. But most of what is offered in most law courses is doctrine and technical analysis of a kind that might be of use to a lawyer but has little to do with any profound meaning. By failing to be honest about the true nature of American legal education and scholarship we have created a mechanism that is neither profound nor pedagogically effective.

If law schools in America had chosen to be true research institutions in which scholars developed a serious comprehensive methodology of research and students earned a first degree in law based on an intellectual interest in understanding law itself as opposed to becoming practicing lawyers then there would be no necessary expectation about educating students aspiring to the profession in professional skills and values. But that is not what occurred and the Faustian bargain between law schools, the organized bar and universities imposes a moral and ethical responsibility on law schools to prepare students for the practice of law at the highest level of the schools’ capability.

A. The Fuller Meaning of “Thinking” like a Lawyer?

I have never thought that the real meaning of “thinking like a lawyer” represents a passive state of mind but one involving the ability to actually function effectively as a lawyer in a dynamic and risky environment—including the ability to implement one’s intellectually thought-out path of professional action effectively. Of course during law school we cannot produce a polished lawyer who like Athena leaps fully developed from a “shell” of a three-year law school education. But if we cannot achieve that end in absolute terms, we can provide the structure, vocabulary, package of the foundational skills most essential to high quality legal activity, and a sense of the greater responsibility of a professional in American society.

This suggests rather strongly that “thinking like a lawyer” is not only a method of rational analysis but a considerably more complex and substantive set of understandings, principles and awareness of one’s responsibility as a principled professional. It is not limited to “thinking” in a technical sense of narrow rationality and the ability to recognize distinctions in law cases and statutes but operates in dimensions of value, duty, technique, an array of knowledge about law and human institutions and behavior and the ability to design and implement effective action. “Thinking”, therefore, involves the total package of praxis and practical wisdom, i.e., the ability to assess, understand, plan and act.

No practicing lawyer or judge with whom I have ever interacted sits around in an office and “ideates”. The reality and complexity of law seldom allow such luxuries. The point is that the formulation of the idea, development of strategic perception and the ability to design and implement effective action are both dynamic and inseparably connected. They are intertwined elements of a single system with each reinforcing and informing the other. To treat “thinking” and “doing” as separate phenomena rather than part of a singular system with interacting elements is to fail to understand the vital connection between the pieces. Concept and action inform and enrich each other. When we speak of what is required to educate the best legal professionals, an exclusive diet of intellectualism is therefore as inadequate as an exclusive diet of “technical” or narrow “skills” education.

The concept of “thinking like a lawyer” represents at least four different but related functions that comprise an integrated package of the qualities of mind and action. One function is a combination of the philosophical and moral dimensions and relates to the quality of the understanding of the underlying conceptual value structure and language on which the Western systems of law, politics, philosophy and culture are grounded. If law schools had never accepted their convenient and lucrative monopoly over entry to the profession this approach would seem to be the primary focus for serious research institutions dedicated to advancing our knowledge of law and its intersection with society. Such research-oriented institutions would be able to proclaim that they were educating students to “think like legal scholars” (not lawyers). They would also be radically different institutions from the law schools of American legal education and research.

Consider the implications of a clear separation of university institutions focused on educating and researching law and legal institutions for themselves rather than lawyer-education schools under the control of the American Bar Association as accrediting agency and state supreme courts as licensors. If law schools had concentrated primarily or exclusively on areas of critical research and only sought to educate students who were committed to the study of such issues based on intellectual curiosity operating independent of any desire to become practicing lawyers they would be entirely different kinds of institutions in number of schools, faculty and students. Rather than 200 U.S. lawyer-education schools with 6,000 or more faculty members and 130,000 plus law students it would be unsurprising to see something like thirty or forty “theoretical” graduate schools devoted in part to the study of law in some form. Such institutions might be expected to collectively involve 500-800 faculty members and 5000-10,000 students who were studying law as an actual graduate discipline involving the theory and role of law.

Such law schools do not exist in the U.S. system. American law schools made their “bargain with the Devil” well over a century ago and from a true intellectual and research perspective their rewards of scale and guaranteed enrollments of those aspiring to become lawyers have come with a price. Law schools would have few students and much more limited resources if they did not provide the sole path of access to the rights and privileges of the legal profession. But if they had not taken that Faustian bargain they would have had the chance to develop as true intellectual institutions with faculty who were true scholars, much like those in schools of philosophy, ethics and social science. That choice was not made and law schools will never be true research institutions in that strict sense. They are at best what Chroust called “academic-professional” schools—whatever this means. So while law schools are to some degree academic research institutions they are not only that or even primarily that. They are lawyer-education institutions whose purpose is educating students desiring to become lawyers rather than scholars.

This brings into play the second meaning of “thinking like a lawyer”. This is what might be called the technical orientation, but it is a higher order variation of that idea beyond what most people consider when surfacing concepts of the technical dimension. This is because it includes the ability to interpret not only the fixed but the dynamic data of a situation within an overarching conceptual and substantive structure. The ability to do this involves many of the insights and methods inherent in the first understanding of “thinking like a lawyer”. But this technical dimension goes beyond the “merely technical” and includes a policy, purposive and applied theoretical dimension. In that enlarged understanding of “technique” the particular disciplinary compartment is examined and critiqued as a system judged against professed goals and functions. This critique includes strategies for improving performance and fairness.

Acceptance of the primary and even exclusive responsibility for educating lawyers imposes a duty to identify the essential skills, knowledge and values that are central to the lawyer’s work. This represents the third dimension of “thinking like a lawyer” and concentrates on the particular thought processes and actions of the advocate. This orientation is of particular importance to preparing students for the real world of law practice because advocacy inevitably involves distorting the material of a dispute when necessary to enhance the probability of success on behalf of a client. This distortion is both deliberate and implicit. It also contains a strong manipulative or Machiavellian impulse that generates moral dilemmas for those who work within the culture of advocacy. The process of advocacy is inescapable. It is powerful. And law schools do a terrible job of preparing their graduates for this overwhelming culture of manipulation, deception and distortion. The first dimension of “thinking like a lawyer” with its consideration of philosophy, ethics, justice and the like also informs this aspect of legal education. This is because it is necessary to consider the limits on the process and the tensions between societal and client interests along with the effects on those who function within this domain.

A final variation on what might be included in “thinking like a lawyer” is the transactional interpretations that, while also within the purview of advocacy, contain elements that are more honest and less manipulative. All these forms of thought and analysis are part of “thinking like a lawyer”. The question is the degree to which legal education can and should provide a firm foundation in these forms of thought and action for law students. As to what law schools should do, given their monopoly over entry into the legal profession, it seems obvious that they should be doing far more than currently. A problem the schools have never adequately addressed, however, is the extent to which they are capable of offering meaningful education in some areas that would reasonably be thought important for fuller professional understanding and effective performance.

Posted by: David Barnhizer | Jul 9, 2013 8:15:11 AM

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