Statement from the AALS Section on Clinical Legal Education
August 17th, 2015 / By Deborah J. Merritt
The AALS Section on Clinical Legal Education has issued an excellent statement about California’s proposal to require bar applicants to complete 15 units of practice-based experiential coursework. I have already written two posts supporting this proposal, and agree with the views expressed in the Section’s statement. Here is the statement in full:
AALS Section on Clinical Legal Education Statement of Position Regarding the State Bar of California Task Force on Admissions Regulation Reform (TFARR) Experiential Education Requirement*
The Association of American Law Schools Section on Clinical Legal Education (“AALS Clinical Section”) applauds the Trustees of the State Bar of California for unanimously adopting the proposal of the Task Force on Admissions Regulation Reform (“TFARR”) to require applicants to have completed 15 credits of experiential education prior to sitting for the California Bar. The AALS Clinical Section is made up of hundreds of legal educators, including many in California who have dedicated their professional lives to preparing students for the practice of law through in-house clinics, externships, and other experiential educational offerings. In recent years, we collectively and individually have been involved in efforts to ensure that our JD students are more ready for practice, consistent with calls for such training made by bar associations, alumni, prospective students, and fellow educators. Many of us have participated actively in state bar associations and on bar committees, allowing us to appreciate the goals of both the legal academy and state regulators. With these experiences and perspectives in mind, we believe that the TFARR proposal, which encourages the integration of 21st century lawyering skills into the core of legal education, presents a significant opportunity to better prepare students to meet the demands of clients upon admission to the bar.
As the Clinical Legal Education Association (CLEA) and other stakeholders have noted, the legal profession has lagged far behind every other profession in regards to required pre-licensing professional skills education. Numerous studies over the past four decades by the American Bar Association (ABA) and others have decried this lack of practical training and called for reforms to the required law school curriculum.[1] As a result of these reports, the ABA recently increased the number of credits of experiential education required of JD students from 1 to 6 credits.[2] While this represents a significant increase for law students, it corresponds to less than 8% of the JD program. It is also 4 times less than the practical training required of social workers and nurses and more than 6 times less than the practical training required of physicians.[3]
A. The Proposal Reflects an Increased Demand for Experiential Opportunities
Law students also have been clamoring for more experiential education opportunities. The greatest evidence of this demand is the criteria students rely upon when choosing a law school. These choices have become ever more important for law schools facing declining application numbers. A Law School Admission Council study in 2013 found that clinics/internships were among the most influential factors for prospective students in deciding whether to enroll at a given law school, behind only location and employment of graduates (77% of respondents considered location to be a very important factor and 68% classified clinics/internships as very important).[4] In fact, experiential offerings were more important to these prospective students than the cost of the institution, the personal attention they would receive, a school’s ranking, and the reputation of faculty. In addition, a survey conducted in 2004 of recent law school graduates found that opportunities for professional skills training (including clinical courses and legal employment) were rated as the most helpful law school experiences in successfully transitioning to practice.[5] Surveys conducted by the National Association for Law Placement in 2010 and 2011 likewise found that lawyers in the private, government, and non-profit sectors attached great value to their law school clinic experiences.[6] Thus, from the viewpoints of prospective law students, recent graduates, and more senior lawyers, practical training is vital.
B. The Proposal Permits Great Flexibility and Aligns with the ABA Rules
We are aware that TFARR took these factors into account and that it crafted and revised the final proposal over several years during which it worked closely with California law schools, practitioners, and the judiciary, and engaged in extensive information gathering, including numerous opportunities for public comment. The result is a proposal that gives law schools guidance on developing and evaluating experiential learning offerings while simultaneously giving schools flexibility to design these offerings in ways that suit particular institutional missions, student bodies, and relevant legal markets. First and foremost, the proposed California bar rules provide a “safe harbor” for courses that comply with the revised ABA standard, thus allowing ABA-accredited schools to offer programs that simultaneously satisfy both requirements. Under both sets of rules, virtually any topic taught in a real-client or simulated setting will satisfy the ABA and the California Bar, including interdisciplinary courses developed in collaboration with other professional schools. Skills learned can be as diverse as law practice management, client counseling, practical writing (including transactional writing), and pre-trial preparation.
In addition, under the California rules, the settings in which these skills can be learned include traditional courses, clinics and externships, uncredited clerkships, and apprenticeships. The proposal even allows for portions of a course to count, such that a 3-credit course that uses a contract-drafting exercise for 1/3 of the class time could count the 1-credit module towards the 15-credit requirement. Moreover, in a nod to schools experimenting with their first-year curricula, all but the first 4 units of first-year legal research/writing courses can count towards the 15 credits if they are taught through real or simulated client work. Finally, summer work that is uncredited is specifically allowed to count for up to 6 of the 15 required units. Thus, there are virtually limitless permutations of course, field, and uncredited work that law schools can offer to their students in order to meet both the ABA and California rules.
Moreover, the emphasis on skills (as opposed to substantive practice areas) provides schools the ability to tailor offerings to the local marketplace (e.g., oil and gas offerings in Texas or maritime law offerings at coastal schools). The result is that virtually any legal experience a student gains, whether in a law and policy reform organization or at the U.S. Patent and Trademark Office, can potentially count towards the 15-credit requirement. This provides a great deal of room for innovation, allowing institutions to experiment with the delivery of skills and professional training and draw upon generally under-utilized resources such as alumni.
As with any new undertaking, there will be a period of adjustment as schools begin to grapple with both the new ABA requirements as well as state requirements like those proposed by TFARR. TFARR has wisely taken this adjustment period into account by offering exemptions for licensed attorneys from other jurisdictions and allowing post-graduate apprenticeships (which can be paid) to meet the 15-credit requirement. This will ensure that schools have plenty of time to audit and/or ramp up their offerings, that lawyers who had not planned to practice in California still have access to that state’s bar, and that students have every opportunity to learn about and meet the requirements prior to their first bar admission.
Conclusion
Overall, the TFARR proposal presents a significant opportunity to improve the overall competency of new admittees to the State Bar of California. As students enter a rapidly changing and expanding legal marketplace, it is incumbent upon the Bar to ensure that law graduates have the doctrinal knowledge and professional and interpersonal skills needed to effectively and ethically represent clients in California. The TFARR proposal would advance this important obligation of the Bar and help legal education fulfill the demands of our students, their future clients, and the legal profession.
* * *
* Disclaimer in accordance with AALS Executive Committee Regulation 1.4: The opinions expressed here are not necessarily those of each member of the Section and do not necessarily represent the position of the Association of American Law Schools.
[1] The ABA’s 1979 Report and Recommendation of the Task Force on Lawyer Competency: The Role of the Law Schools (“the Crampton Report”) proposed that law school curricula pay more attention to providing professional experiences. The ABA’s 1983 Task Force on Professional Competence shared this perspective and recommended that the ABA make enhanced law school training in lawyering skills a top priority. A decade later, the 1992 ABA Report of the Task Force on Law Schools and the Profession: Narrowing the Gap (“the MacCrate Report”) recommended that law schools “develop or expand instruction” in fundamental lawyering skills and professional values; and the most recent, the ABA Task Force on the Future of Legal Education Report and Recommendation reiterated the “calls for more attention to skills training, experiential learning, and the development of practice-related competencies” and noted that the “balance between doctrinal instruction and focused preparation for the delivery of legal services needs to shift still further towards [the latter].” In addition, the Carnegie Foundation for the Advancement of Teaching publication, Educating Lawyers: Preparation for the Profession of Law (2007), found that courses that included real-life experience with lawyering could teach students all of the relevant professional competencies: intellectual, practical, and formation of professional identity and judgment.
[2] ABA Standard 303(a)(3).
[3] Robert R. Kuehn, Pricing Clinical Legal Education, 92 Denver L. Rev. 1, Appendix A (2015) (citing Molly Cooke et al., Educating Physicians: A Call for Reform of Medical School and Residency (2010); and Council on Social Work Educ., Educational Policy and Accreditation Standards, at Educ. Policy 2.3., Accreditation Std. 2.1.3 (2012)).
[4] The survey ranked factors based on the percentage of respondents who rated each factor as “4” or “5” on a 5-point scale, with “3” as “somewhat important” and “5” as “extremely important.” See Law School Admission Council, LSAC Report, May 2013, at 12.
[5] NALP Foundation for Law Career Research and Education & American Bar Foundation, After the JD: First Results of a National Study of Legal Careers 81 (2004).
[6] National Association for Law Placement & The NALP Foundation, 2010 Survey of Law School Experiential Learning Opportunities and Benefits 6 (2011); National Association for Law Placement & The NALP Foundation, 2011 Survey of Law School Experiential Learning Opportunities and Benefits: Responses from Government and Nonprofit Lawyers 7 (2012).
An Employment Puzzle
June 18th, 2013 / By Deborah J. Merritt
Pedagogically and professionally, it makes sense for law schools to teach practical skills along with theory and doctrine. New lawyers should know how to interview clients, file simple legal documents, and analyze real-world problems, just as new doctors should know how to interview patients, use a stethoscope, and offer a diagnosis. Hands-on work can also deepen knowledge received in the classroom. Law students who apply classroom theories to real or simulated clients develop stronger intellectual skills, as well as new practical ones.
Employers say they are eager to hire these better-trained, more rounded, more “practice ready” lawyers–and they should be. That’s why the employment results for Washington & Lee’s School of Law are so troubling. Washington & Lee pioneered an experiential third-year program that has won accolades from many observers. Bill Henderson called Washington & Lee’s program the “biggest legal education story of 2013.” The National Jurist named the school’s faculty as among the twenty-five most influential people in legal education. Surely graduates of this widely praised program are reaping success in the job market?
Sadly, the statistics say otherwise. Washington & Lee’s recent employment outcomes are worse than those of similarly ranked schools. The results are troubling for advocates of experiential learning. They should also force employers to reflect on their own behavior: Does the rhetoric of “practice ready” graduates align with the reality of legal hiring? Let’s look at what’s happening with Washington & Lee graduates.
Employment Outcomes
I used the law-job calculator developed by Educating Tomorrow’s Lawyers to compare Washington & Lee’s employment outcomes with those of other schools. Drawing upon ABA data that reports job outcomes nine months after graduation, the calculator allows users to choose their own formulas for measuring outcomes. I chose two formulas that I believe resonate with many observers:
(a) The number of full-time, long-term jobs requiring bar admission, minus (i) any of those jobs funded by the law school and (ii) any solo positions; all divided by the total number of graduates.
(b) The number of full-time, long-term jobs requiring bar admission or for which the JD provided an advantage, minus (i) any of those jobs funded by the law school and (ii) any solo positions; all divided by the total number of graduates.
[Note: These are not the only formulas for measuring job outcomes; other formulas may be appropriate in other contexts. These formulas work here because they allow the most straightforward comparison of employment outcomes across schools. These formulas also make the best case for Washington & Lee’s outcomes, because that school did not report any long-term, full-time solos or school-funded jobs in 2011 or 2012.]
Using those two measures, Washington and Lee’s employment outcomes for 2011 were noticeably mediocre. By nine months after graduation, only 55.0% of the school’s graduates had obtained full-time, long-term jobs that required bar admission. That percentage placed Washington & Lee 76th among ABA-accredited schools for job outcomes. Using the second, broader metric, 64.3% of Washington & Lee’s class secured full-time, long-term positions. But that only nudged the school up a few spots compared to other schools–to 73rd place.
In 2012, the numbers were even worse. Only 49.2% of Washington & Lee’s 2012 graduates obtained full-time, long-term jobs that required a law license, ranking the school 119th compared to other accredited schools. Including JD Advantage jobs raised the percentage to 57.7%, but lowered Washington & Lee’s comparative rank to 127th.
These numbers are depressing by any measure; they are startling when we remember that Washington & Lee currently is tied for twenty-sixth place in the US News ranking. Other schools of similar rank fare much better on employment outcomes.
The University of Iowa, for example, holds the same US News rank as Washington & Lee and suffers from a similarly rural location. Yet Iowa placed 70.8% of its 2012 graduates in full-time, long-term jobs requiring bar admission–more than twenty percentage points better than Washington & Lee. The College of William & Mary ranks a bit below Washington & Lee in US News (at 33rd) and operates in the same state. After excluding solos and school-funded positions (as my formula requires), William & Mary placed 55.9% of its 2012 graduates in full-time, long-term jobs requiring bar admission–significantly better than Washington & Lee’s results.
What’s the Explanation?
Law school employment outcomes vary substantially. Geography, school size, and local competition all seem to play a role. But Washington & Lee’s outcomes are puzzling given both the prominence of its third-year program and the stridency of practitioner calls for more practical training. Just last week, California’s Task Force on Admissions Regulation Reform suggested: “If, in the future, new lawyers come into the profession more practice-ready than they are today, more jobs will be available and new lawyers will be better equipped to compete for those jobs.” (p. 14) If that’s true, why isn’t the formula working for Washington & Lee?
I think we need to explore at least four possibilities. First and most important, the connection between practical training and jobs is much smaller than practitioners and bar associations assert. Employers like practice-ready graduates because those new lawyers are cheaper to train; an employer thus might be more likely to hire a practice-ready graduate than a clueless one. Most of those hiring decisions, however, involve choosing among applicants, not creating new positions. A few employers might hire a practice-ready graduate when they wouldn’t have otherwise hired any lawyer, but those job-market gains are likely to be small.
Practice-readiness can even reduce the number of available jobs. If a practice-ready lawyer handles more work than a less-experienced one, her employer may need fewer entry-level lawyers. Even the best-trained new lawyer is unlikely to grow the client base immediately. The number of legal jobs depends much more on client demand and employer entrepreneurship than on the experience that new graduates possess. Maybe the employers recruiting at Washington & Lee have recognized that truth.
Second, even when allocating existing jobs, employers may care less about practical training than they claim. Law school clinicians have noted for years that legal employers rarely demand “clinical experience” as a prerequisite for on-campus interviews. Instead, their campus interviewing forms are more likely to list “top ten percent” or “law review.” Old habits die hard. Employers have maintained for the last few years that “this time we really mean it when we ask for practical skills,” but maybe they don’t.
Third, employers may care about experience, but want to see that experience in the area for which they’re hiring. This possibility is particularly troubling for law schools that are trying to expand clinical and other client-centered offerings. As a professor who teaches both a criminal defense clinic and a prosecution one, I can see the ways in which these experiences apply to other practice areas. A student who learns to discern the client’s individual needs, as our defense lawyers do, can transport that lesson to any practice area. A student who weighs competing interests in deciding whether to prosecute can apply similar skills for any employer.
Unfortunately, however, I don’t think employers always share my impression. Over the years, I’ve had the sense that students from the criminal defense clinic are stereotyped as public defenders, do-gooders, or (worse) anti-establishment radicals–even if they took the clinic for the client counseling, negotiation, and representation experience. Prosecution students don’t encounter the same negative images, but they sometimes have trouble persuading law firms and corporations that they’re serious about practicing corporate law.
No matter how many clinics and simulations a law school offers–and Washington & Lee provides a lot–each student can only schedule a few of these experiences. If a student chooses experiential work in entertainment law and intellectual property, does the student diminish her prospects of finding work in banking or family law? Does working in the Black Lung Legal Clinic create a black mark against a student applying to work later for corporate clients?
I wonder, in other words, if the menu of clinical choices we offer students actually operates against them. Would it be better to cycle all students through a series of required clinical experiences? That’s the way that medical school rotations work. Under that system, would employers better understand that all clinical experience has value for a new lawyer? Would they be less likely to lock graduates into particular career paths based on the clinical experiences they chose? These are questions we need to pursue as we expand experiential education in law schools.
A fourth possible explanation for Washington & Lee’s disappointing employment outcomes is that the students themselves may have developed higher or more specialized career ambitions than their peers at other schools. Some students may have been so excited by their clinical work that they were unwilling to accept jobs in other areas. Others, buoyed by employers’ enthusiasm for practice-ready graduates, may have held out for the most attractive positions on the market. If this explanation has power, then Washington & Lee’s graduates may fare better as more months pass. Maybe practice-ready graduates get better jobs, and perform better for their employers, but the matches take longer to make.
What Do We Learn?
What lessons should we take from Washington & Lee’s 2011 and 2012 employment outcomes? First, the school still deserves substantial credit for its willingness to innovate–as well as for the particular program it chose. If law school remains a three-year, graduate program, then experiential work should occupy a larger segment of the curriculum than it has at most schools in the past. That makes pedagogic sense and, even if experiential learning doesn’t expand the job market, it should produce more thoughtful, well rounded attorneys.
Second, legal employers should take a hard look at the factors they actually value in hiring. What role does clinical experience really play? Do grades and law review membership still count more? Are employers discounting clinical work done outside their practice area? Are they even holding that work against a candidate? Law schools are engaging in significant introspection about the education they provide; it is time for employers to critically examine their own actions and hiring assumptions.
Third, law schools and employers should work together to design the best type of experiential education–one that prepares graduates for immediate employment as well as long-term success. If employers value a 4-credit externship with their own organization more than 12 credits of clinical work in a different area, we need to grapple with that fact. Schools might decide not to accommodate that desire; we might worry that externships are too narrow (or too exploitative of students) and encourage employers to value other clinical training more highly. On the other hand, we might agree that the best experiential education relates directly to a student’s post-graduate job. Unless we work together, we won’t figure out either the hurdles or the solutions.
Washington & Lee’s employment outcomes are a puzzle that we all need to confront. Graduates from most law schools, even high-ranking ones, are struggling to find good jobs. Experiential education can work pedagogic magic and prepare better lawyers, but it’s not a silver bullet for employment woes or heavy debt. On those two issues, we need to push much harder for remedies.
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