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Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Thursday, January 3, 2019

Kuehn: The Uneven Implementation Of Mandatory Experiential Credits Across Law Schools

KuehnTax Prof Blog op-ed:  If 6 Turned Out To Be 9, I Don’t Mind (But 3? or 2!): The Uneven Implementation of Mandatory Experiential Credits, by Robert Kuehn (Associate Dean for Clinical Education, Washington University):

Legal education took almost 100 years before requiring that all J.D. students receive instruction in professional skills and, even then in 2014, acted modestly. In adopting a six-credit experiential coursework requirement beginning with students graduating in 2019, the ABA rejected calls for making one quarter of a graduate’s legal training in experiential courses and mandating a law clinic or externship experience. The limited six-credit requirement contrasts sharply with the one-quarter to one-third skills training required by other professional schools.

A new survey of graduation requirements and student handbooks posted by law schools shows that 90% of schools reacted to the new ABA requirement by simply increasing their experiential requirements from “a course” (the prior ABA requirement of as few as one professional skills credit) to the minimum six credits. But a number seized the opportunity to examine their curriculum and impose additional experiential requirements, while a few relabeled an existing spring first-year legal practice course as “experiential” to avoid requiring additional training for their students.

As the table indicates, 22 schools now require students to graduate with more than the minimum of six total experiential credits from a law clinic, externship, or simulation course(s). Some (Washington & Lee, UDC, & CUNY) had implemented significant additional experiential requirements before the ABA adopted six credits. But others (e.g., Baylor, Case Western Reserve, Penn State-Dickinson, Widener-Delaware & McGeorge) followed the ABA’s action by going well beyond the minimum. For these schools, the new requirement for 6 turned out to be 9, or even as many as 17, experiential credits for all of their graduates.

Schools Requiring More than 6 Experiential Credits Number of Required Credits
Washington and Lee* 18
Baylor 17
California Western* 15
District of Columbia* 14
Case Western Reserve* 12
Pennsylvania State – Dickinson* 12
Widener – Delaware* 12
McGeorge* 11
City University of New York* 10
Dayton* 10
Arkansas, Little Rock* 9
Liberty 9
Loyola – New Orleans 9
University of Washington 9
Western Michigan* 9
Chicago† 8
Elon* 8
Stanford 8
Touro* 8
West Virginia 8
John Marshall* 7
Ohio Northern* 7
* requires or guarantees law clinic or externship
† counts first-year spring legal practice course

Most schools mandating more than the ABA experiential minimum also require or guarantee that each student graduate with a law clinic or externship experience, indicated by an asterisk in the table. Since adoption of the new experiential requirement, 30 schools have implemented a new clinical requirement or guarantee. In total, over one-third of schools now require or guarantee each graduating J.D. student enrollment in a law clinic or externship course — 43 schools require a clinic or externship of at least 2 credits and 32 schools guarantee that training. Prior research shows that students at schools adopting a clinical requirement or guarantee do not pay more in tuition for this additional training, contrary to claims that universal clinical training is cost prohibitive.

Schools requiring more experiential coursework than the ABA requires are to be applauded. But there is continued resistance to experiential training at many schools. One-fourth of schools (50) limit the number of law clinic or externship credits or courses a student can apply toward graduation requirements. The most  common restriction is on externship participation, with 39 schools limiting total externship credits or courses, while 8 schools cap law clinics. Sixteen schools limit combined law clinic or externship credits or courses, with one school even capping total experiential credits. These restrictions are in addition to the limit in ABA Accreditation Standard 311(a) on non-law classroom credit hours. Standard 311 applies to externships, but not law clinics or simulations, and prevents some students from enrolling in externships or other useful practice-oriented experiences like moot court and interschool skills competitions.

A few schools have even chosen to simply recast long-standing first-year course credits as experiential as a way to meet the new 6-credit requirement. When the proposed amendment to increase experiential credits came before the Council of the ABA Section of Legal Education and Admissions to the Bar for approval it excluded credits obtained in the first year. One member argued, without support, that not all schools would be able to get to six credits, something clearly proven untrue. Others argued that accreditation standards should not be prescriptive and moved to strike “after the first year” from the proposal, claiming that permitting first-year courses to count would spur “innovation” in the curriculum. Persuaded, the Council removed the requirement that the minimum of six credits must be obtained after the first year.

There is scant evidence this change in the proposed requirement has spurred innovation in the first-year curriculum, with Boston College an exception by now requiring all first-year students to choose among experiential-based electives in the spring semester. There is evidence, unfortunately, that a few schools have taken their required first-year spring semester legal practice course (a persuasive legal writing course at 95% of schools) and simply recharacterized it as a three- or four-credit “experiential course.” At those schools, the anticipated new six-credit experiential training mandate became a two- or three-credit upper-level course requirement, mirroring the old “a course” requirement the ABA had sought to abandon.

Schools that restrict experiential training for their students or engineer around ABA requirements reflect a resistance to professional skills training that was the hallmark of most schools in the 20th century. They prove, once again, that even when the ABA modestly attempts to make legal education more connected to the actual practice of law, many schools will resist. While this is a pity, the greater pity is the ABA Council’s condoning this race to the bottom.

https://taxprof.typepad.com/taxprof_blog/2019/01/kuehn-the-uneven-implementation-of-mandatory-experiential-credits-across-law-schools.html

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Comments

I am curious as to how schools monitor (if at all) the quality of their externships. My own alma mater had a broad selection, which ranged from the superb to the downright exploitative; from those seeking to mentor and cultivate all the way down to those looking for free, clerical labor. Unfortunately the admin thought the best way to deal with such things was... to run cover for the employers and try to hide the ball from students. If you wound up somewhere that, say, really just wanted you to answer the phones and had no intention of giving you any law-related work, well, better luck next time. Hopefully other law schools aren't so cynical, but it would be interesting to hear how they deal with, for example, small law firms looking towards externship programs as a workaround from having to hire and pay a secretary.

Posted by: Unemployed Northeastern | Jan 3, 2019 10:55:56 AM

Perhaps one reason some law schools resist requiring students to take a sufficient number of experiential courses, and/or are reluctant to establish new clinical courses, are the costs generally associated with establishing new clinical courses. Here's an alternative:

TRY CLINICAL COURSES WITHOUT CLIENTS
by Public Interest Law Professor John Banzhaf
Nota Bene, April 09, 2012

A major complaint from both BigLaw hiring partners and corporation counsel is that law school graduates often have such little practical-skills training that the clients are unwilling to pay for legal work done by new associates, and firms are therefore reluctant to hire them. So, many law students interested in getting a leg up in the current distressed legal job market want to get real skills training—beyond the make believe of moot court, trail advocacy, and writing research papers for professors, journals, or contests.

One traditional way to seek such training was to take a legal clinic. But because clinic courses often severely limit the number of law students each clinical professor can supervise, the cost to the law school of providing such clinical training, in separate law school clinics, can be very expensive if not prohibitive; a major factor which can thus prevent the expansion of existing law school clinics, or the establishment of new ones.

The supervisor-to-student ratios for clinics are often kept low because of the need – growing out of ethical obligations, best-practice guidelines, etc – to protect the rights of individual clients. Because of concerns about having clinicians overseeing too many students, a clinical professor supervising only 10 students at a time may be much more costly to the law school than a professor teaching a substantive class of 100 – even if the latter’s salary is 2-3 times higher.

So why not provide clinical training which engage in real legal activities, but without the limitations of representing individual clients? The University of Chicago Law School, for example, has established what it calls its “corporate lab” where law students work with corporation on real corporate problems and current issues. Overseen by only a small number of supervisors, some 70 law students learn how to provide client services to real clients. They also get to make invaluable contacts with many lawyers, but interact with them as legal collaborators, not as clients to be interviewed and represented.

For many years I taught a course in public interest law where I often supervised more than a dozen students a term in bringing real legal actions which usually proved to be remarkably successful. The students didn’t need – and probably didn’t want – the very close type of supervision and guidance they might get in a clinic.

Instead, knowing that they were largely responsible for their own success or failure, they worked harder – as real lawyers are often forced to do – familiarizing themselves with new legal areas. The resulting feelings of satisfaction and accomplishment from their successes were all the stronger because the students proved to themselves that they were able to work largely on their own without constant oversight. It also meant that, in addition to supervising more than 10 students in a clinical course, I was able to teach a 4-hour substantive course in Torts during the same term; classes which could exceed 100 students.

In short, it’s apparently possible to give many more law students real world legal experience, with much lower costs because of higher supervisor-to-student ratios, simply by not having the students represent individual clients. But not representing clients don’t mean that students must pass up the important experience of learning how to interview individuals regarding their legal problems.

For example, when my students did a project about spousal abuse, they interviewed many battered women. But the document they filed with the DC Police Department – which resulted in important new protections for battered women – was not filed in the individual names of the battered women, so the need for very close oversight and supervision to protect their individual legal rights was absent.

Likewise, when law students researched a legal petition which resulted in making emergency warning messages on TV accessible to deaf people, they talked with many hearing impaired individuals, but did not legally represent them. Moreover, in moving from that victory to establishing the National Center for Law and the Deaf, they had to interview many more deaf individuals – a task made even more difficult than usual by the need to use sign language interpreters.

Other examples abound. Both Alan Dershowitz at Harvard, and our own Jonathan Turley, have used students to assist them in bringing real cases in real courts (see “Reversal of Fortune,” available on Netflix.) But neither is restricted to teaching only in clinics in which a limited number of students receive this valuable real-life training. Instead, each also teaches substantive courses to large numbers of students as their colleagues do.

So, as we use the arrival of a new dean as a catalyst for change at the law school, perhaps we should consider having more programs in which law students are able to obtain valuable real-world legal experience, but without the major constraints which can be imposed when they represent individual clients whose rights must be protected.

Posted by: LawProf John Banzhaf | Jan 6, 2019 8:28:34 AM