Education and Employment

February 6th, 2016 / By Deborah J. Merritt

The ABA’s Council of the Section of Legal Education and Admissions to the Bar is once again considering amendments to Standards 304 and 305 in order to permit externship credit for paid work. As I have written before, I support that change. When granting academic credit, the quality of the experience counts–not whether the student was paid for the work.

I have heard about unpaid externships that offered very little educational content. Conversely, I know of terrific externship placements (with both nonprofit and for-profit employers) that required students to choose between academic credit and pay under our current rules. I see no clear line between pay and educational value. Nor does a black letter rule seem appropriate for a learned profession: Surely ethical educators can determine which externships deserve academic credit.

The debate, meanwhile, raises a more troubling issue. If education and paid employment are incompatible, as some comments on the ABA proposal suggest, then we have lost an essential element of our professionalism. It’s possible that we have lost that element, but I think it’s worth reflecting on the issue.

Education and Professions

In a forthcoming paper, I explore the role that education plays in creating and maintaining professions. Bluntly stated, a profession cannot exist unless its members commit to ongoing education of new members. This commitment to intergenerational education is an essential feature of professional status. Without it, society is justified in withdrawing the profession’s exclusive practice rights.

This duty to educate has implications for both the bar and the academy. As I suggest in my article, all of us are failing to deliver fully on this commitment; both practitioners and professors need to improve the education offered new lawyers. For now, though, let’s focus on the relationship of this duty to the debate over paid externships.

Within a profession, all employment should include opportunities for education. Otherwise, how would professionals hone their expertise over time? How would they learn to serve new types of clients or to administer new laws? Professional expertise is more than the technical knowledge gained from books or the practice pointers picked up at CLE programs; it requires learning from colleagues and practice in context.

After studying the organization of professions, Howard Gardner and Lee Shulman concluded in an influential essay that these occupations invariably support “an organized approach to learning from experience both individually and collectively and, thus, of growing new knowledge from the contexts of practice.” Without an “organized approach to learning” that generates “new knowledge from the contexts of practice,” a profession is simply a trade.

Where Should We Go From Here?

For law to maintain its status as a profession, we need to strengthen the relationship between education and employment–not drive a wedge between the two. The Council’s proposal, which would allow law schools to grant academic credit for properly supervised paid externships, is a logical step. We must, however, do more to buttress the integration of employment and education in our profession. Here are just a few further steps in that direction:

First, faculty members who supervise externships should have training in the pedagogy of workplace learning. To maintain that expertise, law schools should support ongoing professional development for faculty working in this field. These professors should also hold at least half-time faculty appointments. Ideally, externship professors (along with clinical and legal writing faculty) should enjoy the same status and pay as traditional tenure-track faculty. Schools that are not willing to treat all teaching faculty equitably should at least afford externship faculty the same status as clinical and legal writing faculty.

Second, externships should complement, rather than replace, the role of clinics in legal education. Clinics provide opportunities for reflection and feedback that few (if any) externships can replicate. Externships, on the other hand, can expose students to a wider range of practice experiences. Ideally, every law student would participate in at least one clinic and one externship.

Finally, law schools should work with employers to enrich employers’ ability to provide educational experiences in the workplace–regardless of whether the employer supervises externs. Through their clinics, externships, simulations, and legal writing programs, law schools have developed expertise in the integration of education and client-focused work. Schools should strive to extend that knowledge and to share it with employers. This endeavor will require resources from both schools and employers, but it is essential to preserve lawyering expertise and professional status.