Best Practices for Legal Education

Robert Kuehn, Washington University School of Law, blog post author 

Legal education took almost 100 years before requiring that all J.D. students receive instruction in professional skills and, even then in 2014, acted modestly.[1] In adopting a six-credit experiential coursework requirement beginning with students graduating in 2019, the ABA rejected calls for making one quarter of a graduate’s legal training in experiential courses and mandating a law clinic or externship experience.[2] The limited six-credit requirement contrasts sharply with the one-quarter to one-third skills training required by other professional schools.[3]

A new survey of graduation requirements and student handbooks posted by law schools shows that 90% of schools reacted to the new ABA requirement by simply increasing their experiential requirements from “a course” (the prior ABA requirement of as few as one professional skills credit) to the minimum six credits. But a number seized the opportunity to examine their curriculum and impose additional experiential requirements, while a few relabeled an existing spring first-year legal practice course as “experiential” to avoid requiring additional training for their students.

As the table indicates, 22 schools now require students to graduate with more than the minimum of six total experiential credits from a law clinic, externship, or simulation course(s). Some (Washington & Lee, UDC, & CUNY) had implemented significant additional experiential requirements before the ABA adopted six credits. But others (e.g., Baylor, Case Western Reserve, Penn State-Dickinson, Widener-Delaware & McGeorge) followed the ABA’s action by going well beyond the minimum. For these schools, the new requirement for 6 turned out to be 9 [4], or even as many as 17, experiential credits for all of their graduates.
 

Most schools mandating more than the ABA experiential minimum also require or guarantee that each student graduate with a law clinic or externship experience, indicated by an asterisk in the table. Since adoption of the new experiential requirement, 30 schools have implemented a new clinical requirement or guarantee. In total, over one-third of schools now require or guarantee each graduating J.D. student enrollment in a law clinic or externship course — 43 schools require a clinic or externship of at least 2 credits and 32 schools guarantee that training.[5] Prior research shows that students at schools adopting a clinical requirement or guarantee do not pay more in tuition for this additional training, contrary to claims that universal clinical training is cost prohibitive.[6]

Schools requiring more experiential coursework than the ABA requires are to be applauded. But there is continued resistance to experiential training at many schools. One-fourth of schools (50) limit the number of law clinic or externship credits or courses a student can apply toward graduation requirements. The most  common restriction is on externship participation, with 39 schools limiting total externship credits or courses, while 8 schools cap law clinics. Sixteen schools limit combined law clinic or externship credits or courses, with one school even capping total experiential credits. These restrictions are in addition to the limit in ABA Accreditation Standard 311(a) on non-law classroom credit hours. Standard 311 applies to externships, but not law clinics or simulations, and prevents some students from enrolling in externships or other useful practice-oriented experiences like moot court and interschool skills competitions.

A few schools have even chosen to simply recast long-standing first-year course credits as experiential as a way to meet the new 6-credit requirement. When the proposed amendment to increase experiential credits came before the Council of the ABA Section of Legal Education and Admissions to the Bar for approval it excluded credits obtained in the first year. One member argued, without support, that not all schools would be able to get to six credits, something clearly proven untrue. Others argued that accreditation standards should not be prescriptive and moved to strike “after the first year” from the proposal, claiming that permitting first-year courses to count would spur “innovation” in the curriculum. Persuaded, the Council removed the requirement that the minimum of six credits must be obtained after the first year.

There is scant evidence this change in the proposed requirement has spurred innovation in the first-year curriculum, with Boston College an exception by now requiring all first-year students to choose among experiential-based electives in the spring semester. There is evidence, unfortunately, that a few schools have taken their required first-year spring semester legal practice course (a persuasive legal writing course at 95% of schools)[7] and simply recharacterized it as a three- or four-credit “experiential course.” At those schools, the anticipated new six-credit experiential training mandate became a two- or three-credit upper-level course requirement, mirroring the old “a course” requirement the ABA had sought to abandon.

Schools that restrict experiential training for their students or engineer around ABA requirements reflect a resistance to professional skills training that was the hallmark of most schools in the 20^th century. They prove, once again, that even when the ABA modestly attempts to make legal education more connected to the actual practice of law, many schools will resist. While this is a pity, the greater pity is the ABA Council’s condoning this race to the bottom.

 
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[1] RPeter A. Joy, The Uneasy History of Experiential Education in U.S. Law Schools, 122 DICK. L. REV. 551 (2018), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3129111.

[2] Clinical Legal Educ. Assn. (CLEA), Comment on Draft Standard 303(a)(3) & Proposal for Amendment to Existing Standard 302(a)(4) to Require 15 Credits in Experiential Courses (July 1, 2013), at http://cleaweb.org/Resources/Documents/2013-01-07%20CLEA%2015%20credits.pdf ).

[3]Robert R. Kuehn, Pricing Clinical Legal Education, 92 DENVER L. REV. 1, App. A (2014), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2318042.

[4] Jimi Hendrix, If 6 Was 9, at https://vimeo.com/231127630.

[5] Required or Guaranteed Clinical Experience (CSALE Oct. 2018), at https://perma.cc/3CCA-53UQ.

[6] Robert R. Kuehn, Universal Clinical Legal Education: Necessary and Feasible, 53 WASH. U. J.L. & POL’Y 89 (2017), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2942888.

[7] ALWD/LWI ANNUAL LEGAL WRITING SURVEY, REPORT OF THE 2016-2017 SURVEY 25 (2018), available at https://www.lwionline.org/resources/surveys.

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