Wednesday, December 18, 2013
One of the criticisms of increasing experiential education, as required by California and proposed by the ABA, is how it will affect law school tuition. One person wrote (here), "By my estimate, our clinics cost about 17x as much per student-hour as the average classroom course (that's just salary + benefits for faculty, fellows, and admin assistant plus a bit of overhead divided by the number of students). It's not clear whether there are consistent pedagogical benefits from clinics, and there's no evidence that it helps with employment. Whatever the benefits of clinical education, it is utterly inefficient if done right. There's nothing like a perceived crisis for everyone to push their pet pedagogical agenda as a solution." Another person wrote (same blog), "'live client' clinics are the most costly form of legal education that we provide -- cutting against concerns re student costs. . ."
First, the ABA proposal and the California requirement allow for the experiential requirement to be satisfied by clinics, externships (apprenticeships), and simulation courses. Professor Dan Filler declared: "Critics concerned about cost have it backwards. While this proposal could increase a law school's costs, if it chose to implement it via live-client clinics, it could also substantially decrease the school's costs if it used externships to deliver the credits."
Second, clinics are not as expensive as some critics claim they are. For example, in a recent study, Professor Robert Kuehn concluded: "Some blame the cost of clinical legal education for high law school tuition. They argue that, regardless of the educational and employment benefits to students, clinical legal education, and law clinics in particular, are too expensive to expand or require for all students in a time of decreasing law school enrollments and revenues. This article is an empirical examination of that claim.
Reviewing tuition, curricular and enrollment data from all law schools, the article demonstrates that 79% of law schools already have the capacity to provide a clinical experience to every student without adding courses or faculty, although only 15% presently require or guarantee that training. It finds there is no effect on the tuition and fees students pay from requiring or guaranteeing every student a clinical experience, no difference in tuition between schools that already have sufficient capacity to provide a clinical experience to each student and those that do not, and no tuition growth associated with the increased availability of law clinics for students or increased participation of students in law clinics. It concludes that providing a clinical experience to every law student has not cost, and need not cost, students more in tuition and is more a question of will than cost."
Third, law schools are already offering small enrollment courses in the second and third years, so adding more simulation courses should not increase costs. For example, when I have taught seminars, there has been a cap of 12 students who can enroll. If law schools can offer seminars with between 10 and 15 students, why can't law schools offer small enrollment simulation courses. Similarly, many specialized courses in the second and third years attract small enrollments. I have seen many courses at the law schools that I have taught at or attended that had less than ten students. Experiential classes should attract more students than this, especially if they are required.
(Based on my experience teaching legal writing courses, I would suggest that the maximum enrollment fo experiential classes be 25. A reasonable load would be for professors to teach two experiential courses a semester or one experiential course and a doctrinal course.)
In sum, adding experiential courses to the law school curriculum is not a question of adding cost and increasing tuition; it is a question of allocating resources. The California Bar and the ABA proposal favor allocating resources to practical courses. In doing so, I believe that they are protecting the public by trying to produce better lawyers. I hope more states adopt similar requirements to California's.