It is not surprising that President Obama wants to decrease the cost of higher education and make it more affordable for the average American family. Nor is it surprising that he floated the idea of decreasing cost by decreasing the number of years a law student has to PAY for school as reported by the New York Times here.    Without a full understanding of all the issues, that often appears to be a sensible idea.  What is surprising is that the President confuses unpaid interning with a “clinical experience.” As we know from the medical and other professional settings, clinical experience is NOT the same as allowing   barely trained law students to “HAVE AT IT” in a practice setting. Nor is every environment appropriate for clinical training and supervision. The whole point of “clinical education” is supervision, feedback, mentoring, and learning to learn from observation, experience and mistakes.

Another problem with the President’s “shoot from the hip” comment, is that the very reason that new law students can’t find jobs is the same reason today’s law firms are NOT appropriate for the kind of mentoring which was done in days of yore. As a member of the New York State Task Force on the Future of the Legal Profession and a chair of the Education and Training Subcommittee, I learned from legal employers and their clients that the market-driven, competitive nature of private industry today has created a situation in which clients no longer want to pay for the on-the-job training of new attorneys. More senior attorneys are so tightly time-managed relative to billable hours that they have significantly less hours and energy to mentor, supervise and help form new attorneys. That’s where law schools have added value for graduates and provided the support and individual attention that tomorrow’s lawyers need through clinical programs (both in-house and in the field). If the President wants to add his significant heft to this debate, he should do so in a more nuanced and effective manner than making an off the cuff comment.

10 Responses

  1. Exactly what I thought when I read about his comments. Thank you, Mary.

  2. What is your opinion of externships? It seems to me that your comments also apply to externships.

    • Absolutely! At my school, we consider both inhouse and extern CLINICAL. I believed I was including externships when i referred to “in the field.” (We call them field placements at my school..)It’s the supervision, reflection and feedback design component which a well run externship model offers.

  3. Mary gets this exactly right – and she teaches at Albany, a school that has a tradition of offering experience in practice worth paying for.
    A magazine called Prelaw just published an UNinformed article on externships – they (and all of us) would do students a favor by distinguishing between externships that schools can honestly offer for credit, vs. the more common “cash for the law school model”, where very loosely structured “externships” are a hit or miss operation. Some schools have the gall to design and staff these cash model externships using people with little or no legal education or teaching experience, and expect them to supervise more than 100 students at a time. This is not a slam at the people trying to do a good job running externships. On the other hand, the faculty and administrators who approve these models and the ABA, which has completely passed on their responsibility to make sure schools are not charging for empty credits should be ashamed!

  4. Mary’s rebuttal of President Obama’s point is sound, but it also supports what a lot of the “two year law school” proponents maintain: If law students experience in their third year nothing but the same types of doctrinal courses that most had in their second year, then there isn’t a need for a third year of law school. In terms of the ABA, all of the Standards are minimal so the blame for poor externships, just like the blame for poor in-house clinics or any other course in any law school, really falls to the law schools for not taking the education of their students seriously. in terms of the externship standard, currently Standard 305, it was beefed up in the early 1990s and again in the late 1990s. When that occurred, some in the clinical community criticized the ABA for “micro-management” and impeding flexibility and creativity. These are the same critiques some deans leveled at the ABA when it first sought to improve the quality of externships in the early 1990s by requiring faculty involvement, contact with field supervisors, faculty involvement with the students, and educational goals. Believe it or not, these basic aspects of what we accept as very minimal requirements did not exist at many law school externships before the ABA stepped in to regulate them.
    When the ABA did propose regulating externships, one associate dean complained that requiring increased instructional resources as the number of students and credits increased was “inappropriate micro-management.” So, I agree that the ABA could and should do more, not just about externships, but about legal education in general. What we need is what Mary wrote about, true clinical experiences where students receive sufficient supervision and feedback and learn how to learn from their experiences. And we need to require between one-quarter to one-third of this type of learning in law school to justify a third year that will help to prepare students for the practice of law. But needed supervision, feedback and learning occurs in well-resourced in-house and externship programs, which depend now and will continue to depend on the dean and faculty at each law school to allocate sufficient faculty resources.

  5. The response to POTUS And the comments thereto do not show that three years are enough! Why not two more years, perhaps of apprenticeship? The averseness to paying for on-job-training will not go away, nor will the need for it, however long law school might take. If there is a need for mentoring after two or three years of school, including clinical training, there are at least two answers: graduate training for specialties or a continuing relationship with law school for occasional help. Both are expensive and the latter raises confidentiality and conflicts problems. Are the added costs worth the gain?

    Recall that the third year was probably born of a desire to keep riffraff out of the profession by raising the costs of entry. I recall my final year as filled with interesting courses and seminars that helped me not at all as I burdened employer and client with the incompleteness of my training in the skills of lawyering.

  6. Back in January, a few of us, principally Margaret Moore Jackson, described our major misgivings about this cheap, superficial pseudo-solution to the paradoxical plagues of our profession: 1) inadequately prepared law graduates who provide commensurately poor-quality service, hamstrung by massive debt and led by desperation to take on any work they can find, no matter how much they hate and fail at it; and 2) the total unavailability for most ordinary people of anything like access to decent, ethical, competent legal advice and representation.

    We might want to call this zombielike proposal that keeps rearing its ugly head the “TASTES GREAT, LESS FILLING” Theory of Legal Education: “We’re not going to change anything that we do in law school to make it better, because, hey, the first two years are great the way they are, right? Nah, we’re just going to give you a lot less of it and claim THAT makes it better.” (Of course, nothing guarantees that the total program will even be cheaper for the individual graduate; what would stop law schools with the “reputations” to get away with it from substantially increasing tuition for the two years they still have them?)

    Perhaps President Obama, like so many of our colleagues, simply lacks enough practice experience to understand that you don’t acquire the capacity to protect a client’s health, freedom, autonomy, financial security, or other rights through casual unstructured observation of whatever cases happen to come in an office door, or by performing random, unconnected tasks on various cases with no decision-making authority or responsibility and no opportunity for reflective analysis of the consequences. Perhaps he does not grasp the extent and complexity of the lawyering choices involved in even the most straightforward immigration or Social Security or competency to stand trial or zoning matter (just to name cases that went by me in the past 24 hours). What most lawyers need to learn — heaven knows, too many do not — requires if anything MORE structured education and preparation, designed not merely to learn some law, but to learn HOW to LEARN from their experience.

    How are practicing lawyers who themselves had no training of that kind, who usually have no idea even what is meant by that phrase, and who tend to get anxious and defensive whenever anyone tries to examine the quality of their practice and decision-making — how are they supposed to take the time and make the effort to teach this to completely clueless “graduates” whose work clients either ARE paying for — a certain constraint — or are NOT paying for, perhaps a greater constraint? And a practicing lawyer is going to make this sacrifice for a graduate who is committed to, at most, one year with that lawyer?

    Remember, given the much greater numbers, we are contemplating an even more extreme “buyer’s market” than for the current externship-based models, when often it is a struggle to identify and engage enough placements of real substance and quality (and let’s admit, shall we, that occasionally when a student insists on a particular practice or geographic area, those factors take priority over the caliber of feedback and supervision and student responsibility). Do we imagine that that all these two-year grads will “apprentice” to the best (however you define that), the most successful (ditto), the insightful and intellectually sophisticated lawyers? Certainly some will be selected, just as now there is ample opportunity to work for free in such settings if you are among the well-credentialed, the well-connected, and the well-recommended. But where will the overwhelming majority end up? Call me elitist, but there are way, way, WAY too many law offices I wouldn’t want to sentence a predicate felon to do time in, where the hapless graduates will not learn merely nothing, but rather, learn atrocious practice. How will these graduates know, and how much choice will they have if they figure it out? Will a grad who leaves or is fired from an apprenticeship have an easy time lining up another one? Of course, graduates now are exposed to hellacious practice — that’s one reason they need experiential education in professionalism — but at least the ABA and bar admission authorities or whoever is supposedly certifying all this isn’t forcing them into it. It sounds as if quite a bit of bureaucracy and paperwork and approvals and registrations will be associated with this program. Having negotiated all that once, what graduate isn’t going to stick it out? After all, it’s only a year.

    The graduates in these “apprenticeships” are going to be in essence paralegals, taught exactly the minimum they need to perform a limited range of defined tasks during the year. Sure they’ll sit on some proceedings, conduct some interviews, discuss some cases — when it’s convenient, when it doesn’t interfere with the office’s fundamental imperative of making money/serving the maximum clientele (in this regard, not-for-profits are better, in part because they do tend to have more structured and regular collective case analysis, but still subject to the imperative.) Paralegal is a fine and terrifically useful occupation, but if there is no meaningful distinction between professionals and paraprofessionals anymore, then why don’t we just say that after three years, paralegals can practice law and be done with it? Or that anyone who passes the bar exam — after all, our official assessment tool — however s/he acquired the knowledge, can practice? Hm, I wonder why that proposal isn’t getting as much traction . . . could it have something to do with the fact that it might mean the end of the first two years of law school, which all the proponents of this proposal continue to insist are OBVIOUSLY essential?

    I can’t resist noting that when it comes to professional apprenticeships, carpenters, at least, believe that something more substantial is required (this comes from California but appears to be a national standard):

    “The minimum term of Apprenticeship requires 48 months, 4800 work hours and completion of 612 hours of related instructional classes taken at a Carpenters Training Center.”


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