Best Practices for Legal Education

In May 2017, Eduardo Capulong (Montana) moderated a lunch presentation at the AALS Clinic Directors Conference on the new experiential education requirement found in ABA Standard 303, which requires one or more experiential courses totaling at least six credit hours.  Standard 303 also explains that an experiential course must be a simulation course, a law clinic, or a field placement.

For my presentation, I prepared an abbreviated history of how the ABA Standards addressed experiential education over the past several decades.  What I found most interesting as I explored the history was the hostility to experiential education by some legal educators from the inception of university-affiliated law schools in the 1870s.   After the presentation, some clinic directors and associate deans for experiential education came up and said that they found the history interesting and that I should write something up.

Well, I responded to their suggestion and started digging more into the history of experiential education in U.S. law schools.  The more I dug, the more surprises I uncovered. While I was struck with the hostility toward experiential education in law schools, some of more surprising findings are:

–concurrent with the hostility toward experiential education was a preference for a law professoriate with little or no practice experience starting in the 1890s;

— the AALS membership requirements essentially served an accreditation function in the first half of the 20^th Century and the AALS even applied to be accrediting agency for law schools in 1969;

— the ABA Standards did not require law schools’ educational programs to be designed to qualify its graduates for admission to the bar and to prepare them to participate effectively in the legal profession until 1993; and

— something that may not be new but is still surprising, when the ABA first required “substantial instruction” in professional skills in 2005, “substantial instruction” was interpreted to mean only one credit, and some law schools even resisted that minimal amount of experiential education!

I came to realize that the history of experiential education in law schools is primarily a history of some members of the bar, such as Robert MacCrate, and some legal educators pushing the ABA to adopt Standards to nudge law schools to require some experiential education of all law graduates.  Eventually, that digging into the history of experiential education has resulted in a recent draft article The Uneasy History of Experiential Education in U.S. Law Schools.  This article analyzes the history of the ABA involvement in legal education leading up to the first mention of experiential education in ABA accreditation standards. Next, the article traces the development of the experiential education requirement in the ABA accreditation standards, paying particular attention to how the experiential education requirement has evolved from something law schools should offer to something law schools must require. Finally, the article concludes with some suggestions for the future of experiential education in law schools.  If any of this sounds interesting, you may want to check out the article here.  Thank you!

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