Muller: Hard Questions About Experiential Learning, Legal Education, And The ABA

Following up on my previous posts:

• ABA Is Working On A Proposal To Increase Number Of Experiential Credits Required Of Law School Graduates (Nov. 22, 2023)
• ABA Seeks Data On Proposal To Increase Number Of Experiential Credits Required Of Law Students From 6 To 9 Or 12 (Dec. 19, 2023)

Derek Muller (Notre Dame; Google Scholar), Hard Questions About Experiential Learning and Legal Education:

The American Bar Association created an Experiential Credits Working Group out of the Standards Committee suggesting three potential proposals—increasing the number of “experiential credits” in legal education from 6 to 9 or 15. There are some major, and difficult, questions to address.

A decade ago, the ABA added a requirement that all law schools would be required to include six “experiential” units to their curriculum as a condition for JD graduation. This would expand, perhaps significantly, that requirement.

From the beginning of the new proposal, let me open with this:

We have assumed that the value of experiential education in a professional program has been established through the literature on adult pedagogy and professional education pointing to the activity of using doctrine and skills in context in combination with the exercise of critical perspectives, values, and habits as necessary for professional formation.

Respectfully, this is something of a string of thoughts, opening with an “assumption.” Now the assumption, as it says, has been “established.” But established, how?

One might say, the ABA should examine whether, and how, the six-unit requirement has advanced the ends it was originally designed to achieve. From what I’ve seen, it has not achieved what it was designed to do. Professor Robert Kuehn, for instance, has chronicled how the implementation has been a “whimper,” with good evidence—there have been few substantive changes to curriculum; much occurred by “restructuring” how courses are labeled, something of an accounting issue; state bars have lamented the lack of preparedness of law school graduates; and so on. ...

It’s disappointing to see such a proposal of potentially radical changes to legal education with no effort to examine the more incremental measure adopted a decade ago that appears, at least implicitly, to have failed to achieve what proponents desired. ...

Frankly, additional mandates on legal education continue to stifle any innovation or heterogeneity among law schools. And it comes at a time when there’s greater skepticism from the ABA about homogeneity in, say, law schools admissions testing requirements.

But while the ABA seems more willing for heterogeneity in admissions, it seems to want homogeneity on many other things. Over the last couple of years, the ABA’s more recent changes also offer significant new uniform requirements on law schools ....

Undoubtedly, there’s been plenty of praise for the ABA, here and before, for “doing something” in response to actual and perceived problems. But whether it yields any benefits in the future seems impossible to measure.

This proposal to change “experiential” learning, I think, is along the same lines. There’s no baseline comparison or evaluation. There’s no effort to figure out what schools are doing and what works. There’s no articulation of what a successful implementation of the proposal will look like. Instead, it’s some value-laden assumptions and some mandates.