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Monday, May 15, 2017

The Downside of Requiring Additional Experiential Courses in Law School

Douglas A. Kahn (Michigan), The Downside of Requiring Additional Experiential Courses in Law School:

In recent years, the bar has expressed dissatisfaction with what is considered by some to be inadequate preparation of law students to begin practicing law immediately after graduation. There are several reasons why this has become a matter of concern for the legal profession. The ABA, state bars and law schools have responded by adopting graduation requirements that force students to take a certain number of experiential courses.

The contention of this article is that the imposition of additional, required experiential courses will have a negative effect on the adequacy of a student's preparation to practice law because it contributes to a reduction in the student's exposure to a range of doctrinal courses (especially core courses) and to the skills that those courses develop.

Indeed, the article contends that the current proliferation of clinical and other experiential courses, together with the increase in the number of other course offerings, has resulted in a sizeable percentage of graduating students being ill-prepared to practice law as soon after graduation as law firms would like. In considering whether to adopt course requirements for admission to a state's bar, those consequences should be taken into account.

http://taxprof.typepad.com/taxprof_blog/2017/05/the-downside-of-requiring-additional-experiential-courses-in-law-school.html

Legal Education | Permalink

Comments

It's a Hobson's Choice:

1) Experiential courses are inadequate to create "practice-ready grads"; though they may be better than doctrinal courses.

2) In schools with limited resources (i.e. most law schools), they will likely replace core doctrinal courses (my alma mater had some downright SHOCKING omissions in the curriculum offerings, and overall their course catalog was about half the size of that of similarly-sized law schools)

3) Doctrinal courses are also inadequate to create practice-ready lawyers.

Posted by: Unemployed Northeastern | May 15, 2017 11:52:37 AM

Good for Kahn. The students have only 3 years to learn how to think like lawyers, but 40 years to learn how to meet court deadlines and fill out the right forms (which is even more important, but ...) .

Posted by: Eric Rasmusen | May 15, 2017 1:18:08 PM

The solution is that law schools should combine doctrinal and skills courses. For example, in a course on pretrial discovery, use a products liability case as the source of the material for interrogatories, depositions, etc. Students learn doctrine better when they are working on real cases.

Posted by: Scott Fruehwald | May 15, 2017 1:37:00 PM

I read the article, and it seems pretty short-sighted in terms of understanding the changes in legal education, students, and even the practice of law. The article does concede that your knowledge is limited to what you have experienced at your own school, and that is very telling because the experience at my school and within my community have been much different. First, attorneys are clamoring for even more experiential learning courses because too many students "don't know how to do anything." Secondly, there seems to be a presumption in your article that a wide array of doctrinal courses is somehow better than a wide array of experiential courses in which doctrine is taught along with the skill (as well as critical thought and problem-solving, of course). True enough, the better solution is most likely "writing and experience" across the curriculum, but that is not really happening in many schools. Quite often, if not most often, it is the skills teachers who must pick up the slack and actually teach the doctrine as well as put the doctrine into a usable context. Finally, students have recognized that the key to success in practice is taking as many experiential/writing courses as possible to pick up the slack in terms of what they do not learn in the plethora of required core courses. That is why students (at least from my vantage point) are clamoring to eliminate many of the core requirements so they are freed up to take the useful and instructive courses available through Clinicians and Legal Writing professors.

If I might add a note also about tax courses, when I first attended law school, Tax was a subject on the bar exam in our state. It no longer is. As a result, enrollment in tax courses precipitously declined. Although I have no disagreement about the utility of a tax course, let's face it, if most of our students were good with numbers (and yes, I understand that tax is more than math, but the ultimate product of understanding tax is numeric), they would not have come to law school. Possibly the only way to get most students to take Tax is to make it a requirement. That's a hard sell as something "advantageous" for their careers, especially for those who have no interest at all in the subject and intend to spend their careers as far away from it as possible.

Finally, learning itself has changed immensely in the last 40 years. Forty years ago, there really wasn't much need for "hands on" learning. The teaching methodology of law school was once based almost entirely on reading, lecture, and sometimes discussion. That does not work for too many students any more. There is now an immense need to understand how the esoteric and academic discussion works in the real world, and it must be practiced over and over again. That is where the experiential learning courses come in and why it was so vital that the ABA changed the standards.

Posted by: Karin Mika | May 15, 2017 4:47:39 PM

Eric,

Enough with the straw man argument. Experiential education is not about meeting court deadlines and filling out forms. It is about applying doctrine to real world situations. It is about how to use doctrine in legal writing. It is about how to use doctrine in discovery. It is about how to use doctrine at trial. It is about using doctrine to write legal documents.

Learning doctrine without knowing how to use that doctrine to represent a client is meaningless. Experiential education without doctrine is just as meaningless. A good law professor combines the two.

Posted by: Scott Fruehwald | May 15, 2017 8:59:11 PM

I think the article, along with much of the discussion on curricular reform, misses the whole point.

Here is the problem, in my view: the focus should not be on whether it is more effective to train students to "think like lawyers" in doctrinal courses or emphasize practical skills instruction and experiential education. This approach isolates doctrinal courses, practical skills training, and clinical instruction into separate parts of the curriculum as if they have no relationship to, or cannot benefit from, each other. I would argue that the opposite is true.

For example, writing enhances thinking, and vice versa. Likewise, clinical instruction enables students to, among other things, refine analytical and practical skills, and develop metacognition through reflection and self-assessment. Thus, to maximize the attainment of core lawyering competencies, the focus should be on integrating, not separating, doctrine, skills, and clinics throughout all six semesters of law school, and maximizing outcomes through formative and summative assessments (with detailed feedback).

In short, I would respond to the author by stating that curricular reform should eschew an "us versus them" mentality. Rather, when doctrinal, skills, and clinical professors acknowledge that the efficacy and outcomes of each component are interrelated, then curricular integration, and the collaboration necessary to effectuate such integration, can occur.
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Just as an example, Chuck MacLean (who has been my colleague for the last four years and is an outstanding legal writing professor) and I recently published "The Guide to Experiential Legal Writing" (Carolina Academic Press, 2016), which sets forth one approach to creating a truly integrated program of legal education, and that was described in the Wisconsin Law Review as one of the best models for skills integration in the country. I would challenge the author of the article to consider this model and then reconsider the merits of his argument

Posted by: Adam Lamperello | May 15, 2017 10:52:10 PM

There is no such thing as a free lunch. Skills courses are generally much more expensive than doctrinal courses. If accrediting bodies require more skills courses, tuition will go up and grads will end up with larger debts. I know this is likely to be viewed as a strange position, but why not let the market decide? Students who want skills courses (and are willing to pay the extra tuition to get them) will be able to do so. Students who don't, won't have to.

Posted by: Theodore Seto | May 16, 2017 4:45:55 AM

I respectfully disagree that experiential courses have a negative effect on student preparation. Medical schools followed a model for decades – two years of basic science taught in lecture followed by two years of experiential clinical work. That model was abandoned to get students more hands on training while learning core science. Schools are even shortening the basic science portion of the curriculum to get students into clinical rotations quicker.

Medical students now see real patients in their first year. They learn core science in patient simulations. And students actively learn in group settings, where they solve problems as a team. Schools adopted this approach because studies show students are more successful with active learning.

These changes have not negatively impacted student performance. Last year, 94% of U.S. medical students passed the Step 1 Exam, a test of the core sciences taken after the second year. The pass rate has been over 90% for years.

As Scott mentioned above, the problem with the experiential courses in law school today, is that they are not integrated with the core curriculum in the first year.

Posted by: anon JD/MD | May 16, 2017 6:08:32 AM

I fail to see how a modest requirement of experiential or clinical courses in the second half of the three-year curriculum would detract from “core” doctrinal courses. The first year is entirely occupied with doctrinal learning, usually featuring the core courses of contracts, property, criminal law, torts, civil procedure, and some kind of a research/legal writing course. The second year includes criminal procedure, con law, ethics, and evidence. After that, students generally select from a smorgasbord of important, but secondary doctrinal courses, including corporations, tax, labor law, estates & trusts, intellectual property, etc. The third year is filled with electives, such as further tax courses, securities law, environmental law, banking law, antitrust, and the always important socialist law, law of robots, empirical research in law, the law of astronomy, animal law, farm law, art law, Chinese law (an oxymoron?), and so forth. Now if we had to pick one or two courses that had to be eliminated in order to make space for clinics or experiential learning, could we?

Posted by: Publius Novus | May 16, 2017 6:30:26 AM

Actually Ted, unlimited GradPLUS loans propping up law school revenue without any risk to the schools (and without hope of dischargeability for graduates) are your free lunch. And a study just last week here on Taxprof found that experiential courses aren't, on the whole, more expensive. Let the market decide? OK - let's pull GradPLUS loans and IBR plans, as is the wont of Congressional Republicans, and let's see how many people still want to finance law school.

Also here's the obligatory mention that your very confident 2013 prediction that there would be a law school graduate shortage by now remains 100% wrong.

Posted by: Unemployed Northeastern | May 16, 2017 7:07:45 AM

If you wonder, Paul, why you got so many angry replies here it's because this was posted on the legal writing listserv along with an entreaty to come here and blast the article in question. Thus, the outrage is manufactured.

Posted by: AnonLawProf | May 16, 2017 8:35:02 AM

This is ten years old but since what we do is timeless the main text may offer some useful insights on the exchanges about doctrinal and experiential teaching and learning.

An Essay on Strategies for Facilitating Learning

Cleveland-Marshall Legal Studies Paper No. 06-127

42 Pages Posted: 5 Jun 2006
David Barnhizer

Cleveland-Marshall College of Law, Cleveland State University

Date Written: June 2006
Abstract

This essay focuses on goals, strategies and techniques for the facilitation of student learning. It reflects a bias toward what can be called active learning in which students move beyond being passive listeners (and too often even less than that) and instead are prompted to travel along a continuum of becoming fully responsible and active participants in their own learning processes. The underlying assumption is that this increasingly participatory engagement with the learning environment - one constructed and facilitated by the teacher - offers great potential for increasing the quality and depth of students' learning. Ironically, it does the same for the teacher because it places a far heavier responsibility on the teacher to listen, interpret, guide and interact rather than merely "profess".

The analysis also begins from the belief that there is a convenient assumption among law teachers that the existing model of the American law school works effectively. This includes the conclusion that its methods and goals are not only appropriate and comprehensive but are being achieved. The reality is quite different. While law teachers have many positive attributes we tend to be amateurs from the perspective of the quality of teaching and awareness of the most effective ways to structure a curriculum, integrate course offerings and design and execute individual courses. Because most law professors have been extremely successful in their undergraduate and law school careers they may feel as if they are endowed by that experience with the knowledge and ability required to teach well, or they may understand their lack of knowledge and seek to compensate for that deficiency through denial and rationalization. In any event there is no guarantee that earlier academic success bears any direct relationship to excellence in teaching. With that criticism in mind this essay examines strategies for facilitating learning. Preliminary to that analysis, however, I thought it useful to discuss briefly the history of the Langdellian Hypothesis about the scientific nature of university legal education and academic legal research and scholarship. It is this flawed hypothesis that shaped the American law school.

Keywords: Teaching, Learning

Suggested Citation:

Barnhizer, David, An Essay on Strategies for Facilitating Learning (June 2006). Cleveland-Marshall Legal Studies Paper No. 06-127. Available at SSRN: https://ssrn.com/abstract=906638 or http://dx.doi.org/10.2139/ssrn.906638

Posted by: David | May 16, 2017 10:06:39 AM

Doug,

Would your case be strengthened if you talked about substantive courses, not doctrinal courses? I am sure you agree that we do not teach rules, we teach a process of thinking about the rules. The doctrine is not our objective; our objective is teaching critical thinking, checking assumptions, problem solving, evaluating institutional structures, and understanding the kind of arguments that appeal to judges and legal decisionmakers. That is the kind of experiential learning that our students need before they enter the profession, and some students need it more than others. Our tragedy is that we have divided the world into experiential and doctrinal teaching, when in fact the division is about setting, not objectives. Whether in a clinical or substantive setting, we ought to be rowing in the same direction, eliminating courses that teach only doctrine and courses that teach experiences that are unconnected from the process of reasoning about the law. If all good teaching is experiential because it incorporates the experiences of the intellect, then the issue you raise is one of balance and not of basic objectives. I suspect that most externships do not provide the kind of intellectual experiences that our students need but a well-crafted clinical course can. Law schools would do well to go back to the idea that we provide an advanced liberal arts education because we teach students how to address social problems by integrating facts, law, and policy from a wide variety of disciplinary perspectives. Then we ought to figure out the settings in which that can be done most effectively. When we do, we will help the profession understand what "practice ready" really means.

Posted by: Peter M. Gerhart | May 16, 2017 10:27:08 AM

Ted,

What is the basis for your statement that "Skills courses are generally much more expensive than doctrinal courses." The only study I've seen on this (by Robert Kuehn) concluded that clinics didn't raise tuition.

Also, there are many different types of experiential education. Are there any studies that say these courses raise law school costs? I haven't seen them. I would think that externships would be very cost-effective. Other experiential classes would be, too. Let's say you have an experiential class on discovery. The enrollment would have to be limited because of the large amount of written work the professor would have to correct. I would say that such a class should have an upper limit of 20 students. However, most upper-level courses in law school have small enrollments. When I taught seminars at Alabama, the maximum was 12. Add to this that most experiential teachers are usually paid less than their doctrinal counterparts, and experiential class are more cost-effective than seminars.

Posted by: Scott Fruehwald | May 16, 2017 11:28:55 AM

My experience is that experiential courses didn't reduce the number of doctrinal courses I took. But it did reduce the number of ridiculous niche seminars on stupid pet academic topics to just about zero.

Posted by: ruralcounsel | May 17, 2017 4:26:04 AM

Messrs: Lamperello & JD/MD: Your observations, comments, and suggestions seem eminently reasonable to me, well-thought out, and, in a theoretical sense, workable. But it will never happen. That is because the folks in charge of the legal academy, i.e., the doctrinal professoriate, are entirely unqualified and incapable of teaching an integrated curriculum such as that you propose. The vast majority of law profs I encountered in law school never practiced, beyond sorting a few documents in a windowless room at a white-shoe firm for one or two years. Nothing I have read here or anywhere else has disabused me of that perception. Indeed, it appears to have worsened–law courses are now taught by JD/PhDs, and in some cases by PhDs. The doctrinal profs will never be qualified to teach an integrated curriculum and will never surrender their positions.

Posted by: Publius Novus | May 17, 2017 8:42:16 AM

I'm actually curious why "Anonlawprof" suggests that Legal Writing professors were "entreated to blast the article in question?" I'm fairly certain that most people teaching Legal Writing have spent their careers trying to explain exactly what they do to many (solely) doctrinal professors and why a combination of theory and practice is the best methodology of teaching in any subject. Why wouldn't people with this knowledge want to say something about the article?

As many have suggested, the true key to a great legal education is combining theory and practice in all classes. I'm curious as to why a suggestion that the author might not be correct about some conclusions is considered to be "blasting the article." Yes, the article was posted on the Legal Writing listserv, but many other Tax Prof Blog entries are also shared and commented upon. I think that's probably a good thing all the way around, despite what seems to be a portrayal of the field of Legal Writing as the angry mob scenario of your comment.

Oddly enough, many individuals who consider themselves Legal Writing professors teach doctrinal classes with an experiential component and seem to be doing quite well with it. Moreover, It's interesting that it is the ABA that has made this change, mostly because of demand from the bar, and not any angry mob of Legal Writing professors who have traditionally been rather powerless in terms of instituting positive change for themselves, or often others (like students) for that matter. And why does the comment not reference the Clinicians who have also chimed in?

As a final thought, manufactured outrage is generally regarded as, "A falsified righteous outrage at things that are basically unimportant and meaningless, frequently employed by politicians, political activists, or the media." I don't think the topic at hand is either unimportant or meaningless. I'm not seeing a whole lot of falsification either.

Posted by: Karin Mika | May 17, 2017 12:55:21 PM

I don't see any manufactured outrage; I see many thoughtful responses. You might want to check out this response from Debby Merritt, who has taught every type of course in the curriculum (doctrinal law, legal writing, seminars, and clinics): http://www.lawschoolcafe.org/2017/05/17/what-do-students-do-in-clinics/

Posted by: Mary Beth Beazley | May 17, 2017 5:59:02 PM

To: Anonproflaw:

I, Ralph Brill, am the one who forwarded Professor Kahn's thoughts to the Legal Writing Listserv I surely did not ask anyone to "blast" the very justifiably famous Prof. Kahn's thoughts. Here is what I posted:Does anyone wish to question Prof. Kahn's reasoning?

Does he really think that learning how to analyze legal problems, perform legal research, apply doctrine from law found in the research to the facts at issue, and objectively predict or persuasively argue for a logical conclusion based on all that, and to possibly draft a legal document to resolve future disputes, or write opinion letters to clients or any of the other legal experiences one can be taught to do in experiential courses will somehow take away from a student's failure to take a course in Commercial Law (core course) or Drone Law (a non-core course)? He also forgets that students usually don't take all core courses, and learn those that are not taken but are tested on the bar exam by taking review courses or through self study. And I have hardly ever seen an actual case litigated where the lawyers involved will solely rely on what doctrine they learned in a law school doctrinal course.

Posted by: Ralph Brill | May 17, 2017 6:29:00 PM

Why do professors who teach experiential, clinical, analysis, and skills courses have to be perpetually subjected to academic mobbing and bullying by professors of traditional law topic classes, such that the former are to be forever minimized? Legal education is an old model struggling to develop new strategies to meet realistic, contemporary needs. No employer has the time, money, or energy to train new employees anymore. The need for lawyers is growing exponentially for individuals who are underserved. Critical thinking needs to be *demonstrated* through action or the *practice* of law becomes merely the *discussion* of law.

Posted by: Takoda | May 19, 2017 10:46:35 AM

A curriculum that develops a wide range of capacities serves students best. The traditional three years of repeated, almost exclusive focus on the truly necessary capacity of critical thinking (my short-hand terminology for the magic of 1L courses), creates an enormous waste of opportunity. Students MUST have those 1L-course-developed capacities, but the first year and perhaps a few second year standard courses are surely sufficient for the development of the critical thinking skills that are the staple and core of the 1L curriculum. In terms of raw knowledge of doctrine, for more than fifty years, the body of law has been far too vast to pretend that a three-year course of study could possibly cover it all. Furthermore, any effort to cover it all is futile because of inevitable changes in the law. So, in terms of raw knowledge, we cover the core; we cover the topics that are foundational; and we send the students off to expand their base of knowledge and adjust to inevitable change over the course of their careers.
Experiential courses are not courses in filling out forms or finding courthouse addresses. They address the critical thinking skills that lawyers actually engage on behalf of their clients. They are the other aspect (after the 1L courses) of learning to think like a lawyer. The best curriculum includes both, and often, as others have said here, combines both in individual courses that teach doctrine/substance and its use to solve client’s problems and otherwise do lawyer’s work.
For all of my career, and more, we have been at this silly game of claiming that one or the other of these teaching missions should somehow be the be-all-end-all. This is not a zero sum game. Courses are being taught by thoughtful teachers every day that address a range of necessary capacities. If we can ever stop behaving like Dr Seuss’s Sneetches, our students, our institutions, and our profession will be better for it.

Posted by: Jim Moliterno | May 19, 2017 1:05:55 PM

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