Friday, March 20, 2020

ABA Commission on the Future of Legal Education, Principles For Legal Education and Licensure in the 21st Century: Principles and Commentary: Part II

In Part II on the the ABA Commission on the Future of Legal Education:  For Legal Education and Licensure in the 21st Century: Principles and Commentary, I will discuss the Foundational Principles and Operational Principles portions of the Report.

Foundational Principles:

STEWARDSHIP: We are guardians of the legal system within our democracy and accordingly work to defend liberty, pursue justice, and maintain the rule of law for future generations.

INQUIRY: We promote critical inquiry and scholarship about law and legal institutions.

ACCESS: We are committed to developing a legal system that provides affordable and effective legal assistance, guidance, and protection to all.

SERVICE: We are a service profession and endeavor continually to better serve our clients, our institutions, and society as a whole.

INCLUSIVITY: We are committed to developing an inclusive profession that values diverse backgrounds, viewpoints, and roles.

ADAPTABILITY: We strive to ensure that our legal institutions and service models anticipate and reflect our rapidly evolving and technology-enabled world.

Comment: This is an excellent list. I should add that these are both foundational principles and ethical duties.  Law professors (and lawyers) are privileged professionals, and have an ethical duty to the public for providing them with this privilege.  Law professors should devote themselves to all of the above, especially their duty to educate the next generation of lawyers.  As part of this ethical duty, all law professors should work for legal education reform.  It has been over twelve years since "The Carnegie Report" and "Best Practices;" reform cannot be delayed any longer!

Operational Principles:

1.  VALUE FOCUS: The costs of legal education and licensure should be designed to advance the quality and availability of legal services. Today, these costs do the opposite–they act as a barrier. We should address the cost of both becoming and hiring a legal professional.

Comment: This is an operational principle that law schools have neglected for far too long.  We have discussed the high cost of legal education for over ten years, and we have done nothing about it.  Law school costs too much.  Many potential students can't afford it, and others graduate with crushing debts.  We must lower tuition costs now, and the only way to do this is through hard choices.

2.  ONE SIZE DOES NOT FIT ALL. Law schools should be able to follow distinct missions serving their students and communities, while reflecting the variation of roles needed for the widespread provision of legal services. Our service delivery models and our system of licensure should also reflect this variation of roles.

Comment: I discussed this one a lot in Part I.  In sum, The ABA needs to adopt rules that law schools experiment and specialize.

3.  PROBLEM SOLVING FOCUS: Every legal problem is embedded within a larger context. Legal professionals should develop exceptional problem-solving, legal-reasoning, and communication skills for a multi-disciplinary, team-oriented world.

Comment: This is the biggie for me.  Law professors need to use much more problem-solving in their teaching.  This starts on the micro-level, by teaching students the cognitive basics of legal reasoning, analysis, and application. (see here)  Law schools then need to apply these micro-level skills on a higher level in complex problem-solving exercises, writing assignments, oral arguments, trial practice, drafting, and other skills training.  This is what lawyers do.

4.  21ST CENTURY COMPETENCIES.  We should collaborate across and beyond the legal profession to identify the competencies needed in the rapidly evolving legal services landscape. Law schools and employers should work together to ensure these competencies are being developed. Licensure should certify entry-level proficiency in the competencies required for these roles.

Comment: Law schools have been behind the times for too long.  It is time to leave the nineteenth century and start preparing students for the twenty-first.

5.  LEVERAGING TECHNOLOGY. Technology continues to drive change at an accelerating pace, affecting how—and even whether—legal professionals are needed for tasks traditionally considered exclusive to lawyers. Legal professionals should be able to identify where technology can or potentially could improve service and access.

Comment: I discussed this one a lot in Part I.  Lawyers must be technologically competent to practice law in tyhe twenty-first century.

6.  VALID MEASURES.  Legal educators, licensing authorities, testing organizations, and employers should develop fair, valid, and reliable measures to assess progression and competence.

Comment: The bar exam and most law school exams do not test students on what lawyers actually do.  Legal education researchers have developed many reliable means of testing adult students.  Law schools and the bar need to look to these models.

7.  MOBILITY,  Our system of legal education and licensure should eliminate unnecessary barriers to living and working in our globalized, interconnected, and mobile world.

Comment: I don't have anything to add to this one.

8.  WELL-BEING.  We should address, improve, and support the well-being of current and aspiring legal professionals. Well-being promotes the strength of the rule of law and our legal system, and the quality of service to clients.

Comment: Law schools have long neglected wellness and professional identity.  Not only do we need to make sure that our students are well-educated, we need to make sure that they are mentally healthy.  Similarly, we must develop our students professional identities, rather than just teaching them the ethical rules.  (see here)

In sum, I find the Committee's foundational and operational principles to be excellent.  Legal education would be vastly improved, and ready for the third decade of the twenty-first century, if these principles were implemented on a detailed level.  I will discuss some more of the Report's details in my next post.

(Scott Fruehwald)

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