Implementation of the ABA’s New Experiential Training Requirement: More Whimper Than Bang

Posted on April 28, 2021 by rkuehnblog

By: Robert Kuehn, Washington University School of Law

When the ABA adopted a new experiential training requirement in 2014, there was hope it would spur law schools to significantly change the way they prepared students for legal practice. The new six-credit requirement in ABA Standard 303(a)(3) was less than the fifteen credits proposed by some educators and did not include a mandate for a law clinic or externship experience. Nonetheless, the six credits were an improvement over the ABA’s previous “substantial instruction” in professional skills requirement.[1] But data from the initial implementation of the new experiential requirement suggest its effect has been more of a whimper than the bang some hoped for, with little evidence it has spurred legal education to enhance the ability of students to get hands-on training in professional skills.

            Law schools are required to report annually to the ABA on the number of seats simply “available” to students in law clinic and simulation courses and the number of field placement/externship positions actually “filled.”[2] Data from the first two years of the new six-credit requirement in 2019 and 2020 show no increase in the positions available to students in clinics or simulations and even a decrease in actual enrollment in field placement courses, when normalized to address fluctuations in nationwide law school enrollment. While some law schools have made important changes to their curriculum, the graph below indicates that, on average, schools have not reported positive changes in law clinic, field placement, or simulation data since the ABA’s adoption of the new experiential standard in 2014. The number of clinic seats available per J.D. student in 2014 was 0.27 and still only 0.28 in 2020; field placements decreased from 0.26 in 2014 to 0.24 in 2020; and seats available in simulations likewise decreased over the six-year period from 1.22 to 1.12 per student.


  Source: ABA 509 Required Disclosures at http://www.abarequireddisclosures.org/Disclosure509.aspx

            The New York Court of Appeals followed the ABA in 2015 with its own new skills competency standard for bar candidates, proclaiming that “the goal of ensuring effective, ethical and responsible legal services in New York requires more than what the new ABA Standards provide.”[3] Commentators on the proposed New York standard argued it simply mirrored the ABA’s requirement, with some additional paperwork, and would not improve the skills training of students. The graph below shows that the New York competency standard, indeed, does not appear to have spurred New York’s law schools to noticeably enhance their professional skills training of students or to provide more training than schools in states following only the ABA requirement. Although students at New York schools were offered more opportunities to enroll in simulation courses lacking the supervised experience of handling the complexities of real-life clients, opportunities to participate in a law clinic were unchanged and field placements decreased.


Source: ABA 509 Required Disclosures for 15 New York law schools

            Data from the recent Center for the Study of Applied Legal Education (CSALE) 2019-20 Survey of Applied Legal Education of 95% of law schools also show little measurable effect from the new experiential training standard.[4] Schools reported no increase in the median number of law clinic courses offered to their students since the prior 2016-17 survey and no increase in the percentage of students that graduate with a law clinic experience. Similarly, there was no reported increase in the percentage of students that graduate with an externship experience, with student demand for externship courses in 2019-20 up slightly from the last survey yet significantly less than externship demand in 2014 when the new standard was adopted. And, the percentage of schools requiring each J.D. student to participate in a law clinic or externship course as a condition of graduation only increased marginally from 20% in 2016-17 to 23% in the 2019-20 survey.

            Two thirds of schools in the CSALE survey did report making some changes to their curriculum in response to the ABA’s new experiential requirement, with almost half reporting the addition of a new law clinic, field placement, or simulation course(s), and one quarter of schools reporting increased slots available in an existing experiential course(s). A 2018 survey by Allison Korn and Laila Hlass also found that about two thirds of schools reported an expansion or enhancement of their course offerings in light of the ABA’s new experiential course requirement.[5]

            In both surveys, however, significant numbers of schools simply restructured existing courses to meet the experiential training definition, including merely relabeling parts of the first-year required legal writing course as “experiential” or offering a one-credit simulation component to a doctrinal course. Because the survey questions did not ask separately about law clinic and externship courses but grouped them with non-clinical simulation courses, the data do not reveal if legal education has increased live-client clinic or externship opportunities for students or simply adjusted to the new requirement in other ways. In the 2019-20 CSALE survey, there was a slight increase of approximately 5% in the reported percentage of students that participated in a law clinic or externship prior to graduation. But fewer than 20% of schools attributed any increase in clinic or externship demand to the new ABA requirement.

            To the extent the ABA’s new six-credit experiential requirement was intended to provide law students with more meaningful hands-on training in important professional skills, its own data do not show that intended result. In addition, surveys of schools on their implementation of the new training requirement do not show significant gains in skills training as a result of the new accreditation standard.

            It is time for the ABA to address these deficiencies by at a minimum requiring schools to report actual enrollments in law clinic and simulation courses so that the ABA can truly judge the effect of its requirement and prospective applicants to law schools will not continue to be potentially deceived by reports of ethereal “available” law clinic opportunities.[6]

            Yet students, and the clients they will soon represent in practice, deserve more than just enhanced reporting requirements. The ABA’s six-credit experiential requirement remains far below the skills training other professional schools require of their students.[7] Two recent studies on legal education have highlighted the need for greatly enhanced skills training, including mandatory clinical training prior to bar licensing.[8] The ABA should heed these calls for reform and revisit the proposals for fifteen-credits of experiential coursework and a mandatory, live-client clinical experience for all J.D. students.

[1] An ABA memorandum explained that “substantial instruction” equaled only one credit of lawyering skills instruction, which could be in a simulation course. Peter A. Joy, The Uneasy History of Experiential Education in U.S. Law Schools, 122 Dick. L. Rev. 551, 574 (2018), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3129111.

[2] Prior to 2017, the ABA also required schools to report the actual number of students enrolled in law clinic and simulation courses, not just seats available. However, the ABA determined that asking schools to report actual enrollment, when the accreditation standard only requires “substantial opportunities,” was unnecessarily burdensome and now only requires schools to report the number of clinic and simulation opportunities that are potentially available to students.

[3] New York Court of Appeals, New Skills Competency Requirement for Admission to the Bar (Dec. 16, 2015), at

http://www.courts.state.ny.us/ctapps/news/nottobar/nottobar121615.pdf; Task Force on Experiential Learning and Admission to the Bar: Report to Chief Judge Lippman and the New York Court of Appeals 3 (Nov. 2015), at http://ww2.nycourts.gov/sites/default/files/document/files/2018-05/Experiential-Learning-Admiss2Bar-Report122015.pdf.

[4] Center for the Study of Applied Legal Education, 2019-20 Survey of Applied Legal Education (2020), available at https://www.csale.org/#results.

[5] Allison Korn & Laila L. Hlass, Assessing the Experiential (R)Evolution, 65 Villanova L. Rev. 713, 731-33 (2020), available at https://digitalcommons.law.villanova.edu/vlr/vol65/iss4/1/.

[6] One school with enrollments of approximately 300 students per class claimed in its 2018 509 Required Disclosure to prospective applicants over 1,500 seats available to students in its law clinics. Another school with a class of 100 reported over 300 clinic positions available, yet only 50 students actually enrolled in those purported available positions.

[7] See Robert R. Kuehn, Pricing Clinical Legal Education, 92 Denv. U. L. Rev. 1, App.. A (2014) (documenting one-quarter to one-third required credits in skills training for other professional schools), available at. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2318042.

[8] Deborah Jones Merritt & Logan Cornett, Building a Better Bar 75-76 (2020), available at  https://iaals.du.edu/sites/default/files/documents/publications/building_a_better_bar.pdf; Joan W. Howarth & Judith Welch Wegner, Ringing Changes: Systems Thinking About Legal Licensing, 13 Fla. Int’l L. Rev. 383, 430-31 (2019), available at https://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=2220&context=facpub.

Filed under: Best Practices, Best Practices & Externships, Best Practices & Setting Goals, Best Practices and ABA Standards, Best Practices and Clinics, Clinical Scholarship | Tagged: , , , , | 3 Comments »

The Imperative and Power of Empirical Research

Posted on February 18, 2021 by Melanie Daily, University of Kansas School of Law

By Anahid Gharakhanian, Southwestern Law School

Allison Korn and Laila L. Hlass’s Assessing the Experiential (R)evolution, recently published in Villanova Law Review, should be celebrated as a much needed example of empirical investigation and analysis in legal education, specifically experiential education.  As aptly noted in the Experiential Education section of Building on Best Practices, “[l]egal education urgently needs empirical research on what methods will best promote deep learning that transfers to practice.” 

For many years, the experiential teaching community has had the benefit of the triennial CSALE Study, providing extensive data about the infrastructure of clinics and externships.  Now Korn & Hlass’s empirical work provides data about the proliferation of deans/directors of experiential education and growth in experiential curricula.  This data sets the stage for the important questions they raise about what law schools are doing about the following:  “working to uplift experiential programming as an essential part of the institution,” and “core to the law school curriculum”; “taking steps to identify, recruit, and support clinicians of color”; and ensuring security of position and voice in law school governance.  Korn & Hlass’s work, along with CSALE’s compilation of data since 2007 about applied legal education, serves as an essential foundation for posing these important questions and joins the clarion call of others that rigorous empirical research is critical in every aspect of our assessment and advancement of experiential education – the students’ learning, role of experiential curricula, and diversity of and equity for experiential faculty. 

I think about the critical importance of empirical work from the vantage point of externships or field placement courses, which provide a singularly unique bridge to practice and where so much of the student’s experience occurs outside of the classroom and the externship professor’s direct observation.  Anecdotally we know that these real world experiences are very important to a student’s professional development and practice readiness as a new attorney.  At the same time, the ABA and some in legal education have worried about the educational rigor outside of the law school setting.  What’s needed is exploration of our impressions and perceptions through rigorous empirical work.  In the world of externships, this translated into research questions that Carolyn Young Larmore, of Chapman University, Fowler School of Law, and I took up in a year-long, multi-school study, assessing students’ success at externships and factors contributing to it (involving three law schools in the same geographic area, with very different externship program designs, and widely different incoming credentials – with 2019 median LSATs of 153, 158, and 168).  The study yielded helpful information about the importance of externships to practice readiness.  Also, a notable finding of our study – related to access – was that students from all three surveyed schools achieved very similar levels of externship success (measured in terms of first-year practice readiness), regardless of widely different entering credentials as well as the academic component of the externship programs.  Similarly, the study found that law school GPA plays a very limited role in predicting externship success.  You can see how this data could be a powerful tool in creating access for law students, from many diverse academic backgrounds and schools, to career-shaping professional experiences while in law school and beyond.

As we tackle empirical questions in experiential education, it’s helpful to think about backward design.  In the case of the experiential programming that we offer to our students, a couple of recent national studies are enormously helpful: IAALS’s Foundations for Practice, a relatively recent national study about what foundations entry-level attorneys need to begin a successful legal career (which is the study that Carolyn and I used to define externship success in our own study – i.e., how close are externs by the end of their externship to first-year practice readiness); and the very recent study by IAALS and Professor Deborah Jones Merritt, Building a Better Bar: Capturing Minimum Competence, with one of its two objectives to “[d]evelop and promote understanding of the minimum competence needed to practice law” (and the second one to “[a]lign the bar exam with research-based concepts of minimum competence”). 

To borrow from IAALS and Professor Merritt, the key here is being guided by research-based concepts.  Whether assessing our students’ learning (as Carolyn and I tackled in our externship study), or raising questions about the role of experiential curricula, and diversity of and equity for experiential faculty – as Korn & Hlass have done – we need to engage in more empirical research and use this powerful tool to inform and advance the critical work of experiential education and educators.

Filed under: Best Practices, Best Practices & Externships, Best Practices, Outcomes & Assessment Techniques, Clinical Scholarship | Tagged: , , , , , | 2 Comments »

Important New Report on Essential Lawyering Skills

Posted on November 2, 2020 by John Lande

Ohio State Professor Deborah Jones Merritt and Institute for the Advancement of the American Legal System Research Director Logan Cornett just published an important report, Building a Better Bar: The Twelve Building Blocks of Minimum Competence, based on insights from 50 focus groups.

They found that minimum competence consists of 12 interlocking “building blocks,” including the ability to interact effectively with clients, communicate as a lawyer, and see the “big picture” of client matters.

They propose 10 recommendations that courts, law schools, bar associations, bar examiners, and other stakeholders should consider in their efforts to move towards better, evidence-based lawyer licensing.

These include requirements that candidates for licensure should be required to complete coursework that develops their ability to interact effectively with clients and negotiate.

In addition, they recommend that candidates should be required to complete coursework that focuses on the lawyer’s responsibility to promote and protect the quality of justice and includes closely supervised clinical and/or externship work.

They include recommendations to use performance tests and restrict use of essay and multiple choice exams.

Here’s a summary of the report.  You might share it with your deans and curriculum committee chairs in case they haven’t seen it.

This brief summary doesn’t do justice to the insights from the report.  I’m sure that faculty are working like crazy in this year of living dangerously, especially at this point in the semester.  You might find it worth your time to spend an hour reading this report when you feel like procrastinating.

The report doesn’t include all my radical ideas for a negotiation school, but it clearly recommends moving in that direction.

I will discuss these ideas with Peter Robinson and Sukhsimran Singh in an upcoming event, They Should Call It Negotiation School, Not Law School, sponsored by the Pepperdine Caruso School of Law Straus Institute for Dispute Resolution.  It will be on Tuesday, November 10, at 1 PT, 2 MT, 3 CT, 4 ET.  Come join the conversation.

Filed under: Bar Exam, Best Practices & Curriculum, Best Practices & Externships, Best Practices and Clinics, Best Practices for Institutional Effectiveness, Best Practices, Diversity & Social Justice, Best Practices, Outcomes & Assessment Techniques | 1 Comment »

“Take-Aways” from Day 1 of Drexel Conference

Posted on May 26, 2020 by Mary A. Lynch

Over 1,000 legal educators are taking part in a two day conference “Leaning into Uncertainty: Ensuring Quality Legal Education During Coronavirus,”  hosted by Drexel Law School and University.  Brief opening plenary remarks were made by Northwestern Law Professor Daniel Rodriguez who cautioned against “virtue signaling” noting that today on May 26th, we don’t know the choices students, faculty and others will make in August.   He called for legal educators to work across law schools to engage in “Collaboration on Steroids!”

After very brief “framing” discussions of questions, participants were assigned into scores of breakout groups.  Today’s Roundtable topics included:

Roundtable 1: Beyond Zoom! Moving from Emergency Virtual Classrooms to a Rigorous, Engaging Online Experience

Roundtable 2: Designing Curriculum and Programs in a World of Social Distancing: Sections, Schedules and Changing Circumstances

Roundtable 3: Maintaining High Quality Experiential Learning Opportunities from a Distance

Each breakout group recorder took notes which will be compiled into a report.  The hope is to make the lessons from the conference useful this summer as legal educators re-imagine law school operations and adapt our teaching methods and designs to meet student and public health needs.

I was able to participate in Roundtable 1 and 3 and found the discussions useful in thinking about my summer course redesign, the needs of our Justice Center, and the different way different schools can adapt and innovate. I jotted down a few “take-aways:”

General 

  • Time and Space are no longer the same as they were pre-pandemic.
  • To be a good teacher virtually, just like teaching in residence,  you have to be YOU!
  • What parts of your teaching are MOST important to be Synchronous? and how do we move other parts to be asynchronous?
  • Who could we record now (besides ourselves!) that we can use for asynchronous learning this FALL .. For e.g., share a hypo with other faculty in your department, or other subject matter experts from other law schools, or practitioner experts and record their reaction to a hypothetical that you can assign students to review after having discussed the hypo in breakout groups and  reported back.
  • If we are socially distanced with masks, and spread apart in the classroom, and we are teaching both virtually (through the class streaming or recording) and in residence at the same time, what works for that kind of socially distanced teaching? Might Zoom sometimes work better?

Community Building Ideas

  • ESPECIALLY for 1L’s in building community – Use Zoom questions for registering to ask students community building questions regarding hobbies
  • Start now to create break out rooms for 1Ls pre-assigning over the summer with asking of human questions.
  • Opening up Zoom 10 minutes ahead as if you are standing by podium and can be asked questions
  • Reframe the week – conversation starts on chat or CANVAS before class and continue  into and after class. 
  • Offer off class opportunities for virtual tea, coffee, happy hours to discuss what’s happening with students generally or what’s happening in the world

Experiential

  • Take Advantage of this moment.  Clinics and experiential courses could serve as important front line workers for the unprecedented need for legal services.
  • How do we overcome barriers to actually get to the people in need and to get them what they need?
  • How do we teach students to be community and client-centered if we are not in the community but physically or socially distanced?
  • How do we prepare students and ourselves to perform competently in the world of virtual courts and lawyering when the rules, protocols and comfort level with the virtual differ across kind of state and federal courts and among different judges?
  • How do we build the people-centered core of clinical work that helps students develop skills, values and networks in interpersonal relationships?
  • How do we resource our students and clients for virtual legal practice?

Lots to chew on and looking forward to hearing more tomorrow!

Filed under: Best Practices, Best Practices & Curriculum, Best Practices & Externships, Best Practices & Setting Goals, Best Practices and Clinics, Uncategorized | Tagged: , , , , , , | Comments Off on “Take-Aways” from Day 1 of Drexel Conference

On the Value of Gap Years and Non-Legal Experience to Legal Employers (and Law Schools)

Posted on September 21, 2018 by Ben Bratman

Reviewing the results of the Foundations for Practice survey conducted by the Institute for the Advancement of the American Legal System (IAALS), I cannot help but note how the 24,000 responding attorneys ranked the helpfulness of various criteria for hiring beginning lawyers. (See here.) Just under 80 percent (78.3%, to be exact) identified “life experience between college and law school” as either a very helpful or somewhat helpful hiring criterion. Moreover, while “legal employment” (88.4% ranking as very or somewhat helpful) and “legal externship” (81.5%) unsurprisingly sat near the top of the list, “other experiential education” — meaning non-legal — was very close behind at 79.4%.

The responding attorneys, from a wide variety of practice areas and from throughout the country, ranked these two non-legal experience criteria — “life experience between college and law school” and “other experiential education” — as slightly more helpful than certain types of legal experience, including federal court clerkships, state court clerkships, and participation in law school clinics. The starker divide, however, came when considering traditional hiring criteria related to law school performance. While well over three quarters of respondents classified both personal and professional experience of a non-legal nature as helpful hiring criteria, only 62.5% said the same about law school class rank. Similarly, only 61.1% said so about law school attended, and merely 51.2% said so about law review experience.

One narrative coming out of the survey could indeed be that practical experience matters more than academic experience, and that seems to be what IAALS is highlighting. But, consistent with the results discussed above, I would suggest another as well: Non-legal experience — both personal and professional — matters almost as much, if not just as much, as legal experience.

The survey was just the first phrase of IAALS’s broader project, entitled Foundations for Practice, and the second phrase, which is being implemented now, directly implicates law schools. IAALS is working with four law schools to “translate the survey results into actionable learning outcomes and hiring rubrics.”

The current phrase focusing on law school outcomes turns my mind to the “incoming” side of law school admissions. The results of the survey suggest to me that law schools should more explicitly prioritize admission of students with meaningful life experience or non-legal professional experience. In addition, if it is not already, LSAC ought to be gathering and reporting to law schools pertinent data as to what percentage of law school applicants are undergraduate students who would be going directly to law school. And, as to those who are not, what are the percentages one year out from the undergraduate degree, two years, three or more, etc.? Just as law schools view national statistics on other important admissions criteria (GPA, LSAT, ethnic diversity, to mention a few) as important benchmarks, they ought to be in a position to do the same for number of years since undergraduate degree.

Having a significant percentage of students with meaningful life experience outside of the law is indisputably of great benefit to the law school learning environment. I see it every year in my classroom. More to the point of the IAALS survey results, by bringing in a significant number of students with such experience, law schools will be contributing to better outcomes — learning outcomes and employment outcomes. In a typical incoming J.D. class at my home school, the University of Pittsburgh School of Law, 20% to 30% of the students are three or more years removed from their undergraduate degree. We do not have a part-time or night program, and certainly those schools that do will have higher percentages of that demographic.

At least one-third and in some years close to one-half of the students in our typical incoming class are coming straight out of their undergraduate studies without even one gap year. This demographic exists at nearly every law school in the country (in varying percentages). Given what we know about the next generation of law students, and given the importance of life experience and non-legal experience as hiring criteria to today’s legal employers, these students would seem to face a more challenging path. What do law schools need to do, if anything? Offer or enhance existing professional development programming or curricula? Offer or enhance existing experiential opportunities that are not exclusively legal in nature and that expose students to non-lawyers and other disciplines and experiences? (Just two examples: teaching or working with high school students, or working with entrepreneurs at a tech startup. Law schools affiliated with a university can offer assorted interdisciplinary educational opportunities as well.)  I will be interested to see if the second phrase of the IAALS project emphasizes ideas like these or others that respond to the demonstrated need for lawyers with life experience and non-legal professional experience.

Filed under: Best Practices & Externships, Best Practices & Setting Goals, Best Practices, Outcomes & Assessment Techniques, Outcomes & Assessment Techniques, Uncategorized | Comments Off on On the Value of Gap Years and Non-Legal Experience to Legal Employers (and Law Schools)

“I won’t be in class; I have a job interview”: Dealing with a Changing 1L Experience

Posted on March 28, 2016 by Ben Bratman

As I regularly teach first-year students, I note with interest a proposed revision to NALP’s 1L Guidelines that would remove all date restrictions on interaction between 1Ls and career service professionals (currently disallowed before October 15) and between 1Ls and employers (currently disallowed before December 1). I also note, with disappointment, the growing number of times that 1L students are missing my Legal Writing class for a job interview or, in one recent case, even for a work shift. A colleague of mine reports her frustration with the same trend.

If adopted, the change to the NALP guidelines would further chip away at the conventional but no longer sacrosanct wisdom that 1Ls should be almost exclusively focused on their academic studies, especially in their first few months of law school. I expect that many schools clinging to that wisdom would have to loosen up existing approaches to the 1L experience, if they have not already.

By way of example, the administration at the school where I teach intentionally schedules 1L classes on all five days of the week for each section. This is consistent with our policy actively discouraging 1Ls from engaging in any employment outside of law school. But probably it is not consistent with shifting realities affecting 1Ls—the very realities that give rise, no doubt, to the proposal to reform the NALP guidelines.

Career services offices, which coordinate many 1L job interviews, simply cannot avoid all potential class conflicts—or at least they cannot where all 1Ls have class five days a week. I am very curious if other schools set aside a whole day of the week or multiple entire mornings or afternoons where there are no classes for 1Ls. I expect that more and more schools will need to consider adopting such an approach.

The challenge to law schools arises not just from the growing priority for 1Ls to search and interview for summer jobs, but also, I think, from a growing priority for at least some 1Ls to actually work in jobs—law-related or otherwise—during the academic year. Indeed, I hear from more and more 1Ls that they are working outside of law school. However, I expect that there remain many schools that, like mine, actively discourage 1L employment.

Interestingly, presuming the ABA House of Delegates goes along with a pending reform to ABA Standard 305, law schools will no longer be barred from offering academic credit to students working for compensation in an approved externship. (As of now, Interpretation 305-2 prohibits law schools from granting credit to a student for “participation in a field placement program for which the student receives compensation.”) Most current externship programs or opportunities are designed for 2Ls and 3Ls. But what should schools do about 1L students who need to work during the school year to make ends meet? I imagine that, if the change to Standard 305 is adopted, some of those 1Ls might be savvy enough to ask for academic credit for their work—presuming it is law-related—and then complain when they cannot get it because the work does not fall within the prescribed curriculum.

Even if my imagination is too wild on that point, the reality is that there are 1Ls in full-time J.D. programs who are working. And, anecdotally, I sense their numbers are rising. If I am right about that trend, perhaps some 1L curricular or programmatic reform is appropriate in response. Whether that means the development of elective 1L externship programs (for unpaid work in government and public interest positions too, of course) or something else, I’m not sure. But I am sure that, for better or worse, employment–searching for it and engaging in it–is changing the 1L experience.

Filed under: Best Practices & Curriculum, Best Practices & Externships, First Year Law School Innovations | Comments Off on “I won’t be in class; I have a job interview”: Dealing with a Changing 1L Experience

Unmasking Assumptions about Employment Outcomes and Legal Education

Posted on September 14, 2015 by Mary A. Lynch

In an upcoming Wisconsin Law Review article, Robert Kuehn, Associate Dean for Clinical Education and Professor of Law at the Washington University Law School, presents a cogent, well-supported and thoughtful article describing the limitations of and lessons we can learn from the existing empirical analysis correlating student enrollment in clinical education and employment outcomes.  Kuehn’s article, entitled Measuring Legal Education’s Employment Outcomes is particularly powerful because it provides a thorough empirical rejection of the claim that clinical coursework might actually harm employment outcomes, as asserted by Professor Jason Yackee and which attracted some sound-bite attention earlier this year. In what is, perhaps,  an unexpected twist, Kuehn demonstrates that using Yackee’s statistical assumptions and methodology also would produce negative correlations for those students who participate on law journals or in moot court competitions.  Kuehn argues that one can’t draw any reliable conclusion from Yackee’s 2013 model, and perhaps not from any nationwide statistical model – as opposed to a particularized analysis of one school –  on the likely effect of clinical courses (or other activities like law journal or moot court) on employment, and surely not the negative effect Yackee posits. Kuehn points out that as to clinical coursework, the available evidence (through surveys) indicates that such experiences do aid some students in securing employment.

If you, like me, still become a bit nervous about how much you actually remember from undergraduate statistics courses, do not be alarmed by this post!  You will find Kuehn’s article accessible and a quick good read, even when he is using words like “regression analysis,” “granular data” and “variable choices.”   Here are the points made in Measuring Legal Education’s Employment Outcomes which I found most helpful:

  1. Kuehn’s reminder that when one confuses correlationwith causation one is bound to come up with a “misdiagnosis.” One problem with Yackee’s analysis is the lack of granular data to calculate the true employment rate for those who took a clinic (or who did not).  In fact, the data is so poor that “the results never account for more than half of the variability in employment across schools.”
  2. Kuehn’s explanation of the “confounding effect of prestige” and bar passage on employment outcomes.
  3. The problems of validity and reliability raised by analyses which employ information from ABA questionnaires, particularly those self-reports submitted prior to 2014.
  4. The fact that “13% of law schools” provide 80% of the school-funded jobs to law graduates. Not surprisingly, Kuehn found this factor biases many results if you examine nationwide statistics. And when Kuehn removes those jobs from the statistical analysis, Yackee’s correlation with clinical education falls apart even using his own assumptions and methodology.
  5. Yackee’s model yields completely different results if one uses the US News Lawyers/judges data versus academic peer data to control for the possible influence of perceived prestige.
  6. Application of Yackee’s model to “Law Journals” and “Skills Competition” and S. Newssub-groups also show no relationship to employment outcomes!
  7. In Yackee’s model, a better ranking is “strongly associated with improved employment outcomes.” However, Kuehn points out that a “closer examination of the relationship between rank and employment indicates that this positive association, although statistically significant when applied across the entire range of top 100 schools, does not hold true for schools ranked 51 through 100 (emphasis added).” 
  8. Kuehn’s documentation of employers who require, “strongly prefer” or identify law clinic experience as a positive factor in hiring such as The U.S. Department of Homeland, legal services and  legal aid offices, district attorney, public defender, fellowships and private law firms.
  9. Kuehn’s description of National Association of Law Placement (NALP) existing information: such as the  2011 survey of lawyers with non-profit and government offices;  the NALP survey of lawyers in firms of predominantly more than 100 attorneys; the NALP survey of public interest legal employers;  and the NALP 2013 presentation on the employment market reporting that ” law firms say they want new graduates to have ‘more experiential learning, client-based and simulation.”
  10. Kuehn provision of good information on other employer information such as the Lexis-Nexis WHITE PAPER: HIRING PARTNERS REVEAL NEW ATTORNEY READINESS FOR REAL WORLD PRACTICE, Professor Neil Hamilton’s employer survey to determine the relative importance of twenty-one different competencies in employer hiring decisions, and Professor Susan Wawrose’s legal employer focus groups which found employers prefer new hires with ” well developed professional or ‘soft skills” along with “strong fundamental practice skills.”

Professor Kuehn concludes by recommending that studies could best be done on a school-by-school basis by “surveying likely employers to find out what educational experiences of students are most valued.”  Professor Kuehn also recommends that schools could also “retrospectively look at various employment outcomes for graduates and any relationship” to students’ experiences while in school.

I agree with Professor Kuehn and am happy to report that  Albany Law School,  through its faculty Assessment committee and Admissions office,  is currently engaged in conducting employer focus groups and analyzing what best helps our students obtain employment in their desired career paths.  Until good data and information suggests otherwise, Professor Neil  Hamilton’s advice to law students,which Professor Kuehn quotes in his “must read” article, bears repeating:

In this challenging market for employment, a law student can differentiate herself from other graduates by demonstrating to legal employers that the student both understands the core competencies that legal employers and clients want and is implementing a plan to develop these competencies, including an ability to demonstrate that the student has experience with these competencies.

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Annual Leadership in Legal Education Issue of Univ. of Toledo Law Review Filled with Best Practices Nuggets

Posted on September 6, 2015 by Patricia Salkin

The new issue of the University Toledo Law Review is out, featuring its annual “virtual symposium” on legal education by law school deans. These annual issues should be read not just be deans and people who are thinking about pursuing a law school deanship, but they should be read by college and university presidents and provosts, members of law school boards of trustees and advisory boards, senior administrative staff, and most important, by law school faculty. The articles in each volume, taken together, offer terrific insights into current challenges facing legal education, interesting historical background on various aspects of legal education, and innovative ideas to shape the future of law schools and legal education. The winter 2015 volume is no exception.

While I will not address all twelve of the articles/essays in this brief review, I do want to highlight several important themes in four pieces. Beginning with the opening contribution by two-time former dean Peter C. Alexander (Indiana Tech and Southern Illinois), more than mere references to “best practices” principles abound. One of Alexander’s assertions is that law schools, in “the new normal” must do more to create “practice ready” graduates as part of the ongoing curricular reform taking place. He also suggests, “Faculty members have to design new methods of instruction and create new pathways for students to learn….Deans must make funds available for faculty members to learn how people learn and how to teach the current generation of students.” (p. 263) This is an astute observation and one not lost on many in the academy. Most of us on the law faculty did not receive any formal education or degree in pedagogy. While those who work with students from pre-K through 12th grade must be certified as teachers after formal baccalaureate and post-baccalaureate training, there are no such requirements in higher education. Few, if any, dispute that in law school the learning styles of our students has changed over time, and this challenges law faculty to more attune to the need to change our teaching methodologies.

Another piece written by Professor George Critchlow, former interim dean and former director of the clinical programs at Gonzaga University School of Law, focuses on ensuring that legal education in a broad sense is accessible to those who wish to serve the public good – including non-lawyers (a good and controversial read). In his discussion on affordability, Critchlow reviews a number of ideas that have been circulating for years including, but not limited to: law schools partnering with legal services organizations and firms (resembling aspects of the medical school model); a discretionary third year program that consists entirely of a practice-oriented experience; participation by law schools with apprenticeship programs that allow or encourage students to engage in actual work outside of the law school in addition to classes (this goes well beyond the current law school supervised externship and clinic experiences); and cost savings to clinical programs by entering into “hybrid” arrangements with community based legal service providers.

A theme in Critchlow’s article is picked up in greater detail in an article by IIT Chicago-Kent College of Law dean Harold J. Krent and director of clinical legal education Gary S. Laser. Krent and Laser focus on meeting the experiential challenge through the operation of a fee-generating law clinic. By highlighting the example of the IIT Chicago-Kent model which in essence is organized as an in-house law office, the authors point out that students are exposed not just to the traditional live client experience of a clinic, but they develop an appreciation for the economics of law practice. This is important given the increasing attention that many law schools are giving to the business aspects of running law offices, whether it be through the incubator movement, the addition of courses on law office management, and the introduction of business skills to the curriculum.

The symposium ends with an essay by UC Hastings College of Law Dean Frank Wu which I highly recommend everyone read. Dean Wu offers his prescription for reforming law schools, much of which I will not address here due to space and my focus on best practice. Wu states, “A lawyer should be like a doctor. There is no medical school graduate who altogether lacks clinical experience. Every licensed physician has seen a live patient presenting actual symptoms before charging anyone for a diagnosis. Yet some law school graduates manage to do quite well by book learning alone. They need not interview, counsel, or draft, to earn honors, if their exams and seminar papers are good enough.” (p. 420) He discusses the increasing importance of the need for the academy and the profession to understand and appreciate the impact that technology is having and will have on the future of the practice of law and lawmaking. Wu addresses the ongoing and long-time debate over the profile of law professors as practitioners or intellectuals. (p. 440) In addressing the costs of change, Dean Wu asserts that the most expensive and most worthwhile change we have “recently” made in legal education is clinical legal education.

Every year I find fascinating the articles and essays published by the Toledo Law Review in their special “deans” issue. I am surprised that many people do not know that this annual symposium exists. It is a good read that should not be missed.

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What’s going on in California? “TFARR- recommended” 15 credits of competency training

Posted on August 13, 2015 by Mary A. Lynch

For those who did not closely follow the California State Bar debate on the requirement of 15 credits of competency training for bar admission (the work of the Task Force on Admissions Regulation Reform, or “TFARR”), I summarize the current status.  (Although I am currently co-prez of the Clinical Legal Education Association, known as CLEA, this post is not written with that hat on.)  This is my own thinking, albeit, informed by the excellent work of the CLEA Advocacy committee.

The TFARR process was two-staged, over a three year period, with opportunities for public comment throughout. CLEA  participated in that process and submitted five separate comments on the proposals that are available at http://www.cleaweb.org/advocacy under “Briefs and Other Advocacy” (documents 4-8).

In the end, TFARR recommended 15 credits of competency training which can be achieved in a variety of ways (in addition to how experiential credits can be earned under the new ABA regulations), and which include six credits of summer work. You can read the TFARR Phase II Final Report  at: http://www.calbar.ca.gov/AboutUs/PublicComment/Archives/2014PublicComment/201411.aspx

The process was complete in November, 2014, with final TFARR recommendations to the State Bar Board of Trustees (that responded to public comments) and unanimous adoption by the Board: http://board.calbar.ca.gov/Agenda.aspx?id=10891&tid=0&show=100008800&s=true#10013881 (agenda item 113). The TFARR Phase II FInal Report represents a compromise based on extensive input.

Lately, some confusion has arisen because of a letter posted to the AALS website authored by a non-standing committee of Deans.  The confusion arises because:

  1. Neither AALS nor this special Dean’s committee ever participated in the two stage TFARR process and so appear to be sort of “johnny come latelys, ” and
  2. The letter mistakenly focuses on an earlier draft of the final proposal failing to recognize the compromises already reached in the final proposal.

I understand that there are efforts underway to correct the confusion which makes me happy since the Deans’ letter is signed by two people whom I have long admired in a variety of contexts.

Other blogs are already exploring the 15 credit  proposal and its interesting and creative approach. For example,   “Kudos to California”  What do our readers think?

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Building on Best Practices now available as eBook

Posted on July 9, 2015 by dmaranville

Are you trying to:

  • Develop a meaningful law school mission statement?
  • Understand new accreditation requirements, learning goals, and outcomes assessment?
  •  Expand your experiential offerings?  Decide whether to use modules or courses?  An on-site clinic, an externship, or community partnership?
  •  Teach ALL of your students in the most effective ways, using a full range of teaching methods?
  • Add to your curriculum more of the professional identity, leadership, intercultural, inter-professional and other knowledge, skills, and values sought by 21st century legal employers?
  • Lead thoughtfully in the face of the challenges facing legal education today?

These and other topics are addressed in Building on Best Practices:  Transforming Legal Education in a Changing World,  now available in ebook format from LexisNexis at no charge.

The print version is not yet out.  LEXIS-NEXIS is taking advance orders for $50, plus shipping.  BUT we understand that they will make one copy available to every US legal educator for free upon on request.  Details on this and international availability still to come.

Thanks, and congratulations, to book project sponsor Clinical Legal Education Association (CLEA), the more than fifty legal educators who participated as authors, and the countless others who assisted as readers and in numerous other ways.

And, a huge shout-out to my wonderful and talented co-editors, Lisa Radke Bliss, Carrie Wilkes Kaas, and Antoinette Sedillo Lopez.

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Building on Best Practices for Legal Education Manuscript Submitted to Publisher

Posted on January 8, 2015 by dmaranville

Four editors,  59 authors, 92 readers, three copy editors, librarians from two schools, a secretary, miscellaneous consultants, three student assistants for bluebooking, and one for setting up perrmacc links.*

Many people, occasionally in multiple roles, were needed to produce the manuscript sent to Lexis last Monday for the forthcoming book Deborah Maranville, Lisa Radtke Bliss, Carolyn Wilkes Kaas, and Antoinette Sedillo López (eds.),  Building on Best Practices:  Transforming Legal Education in a Changing World. (Lexis 2015).  A monster project — but, as I assured a friend, no, not a manuscript about monsters and not monstrously unpleasant to produce – just big, ambitious, and sometimes exhausting for the editors and authors.  A big thank you to all who participated!

The book is a follow up to CLEA’s Best Practices for Legal Education, the 2007 volume by Roy Stuckey and others that inspired this blog.  Like Best Practices, this book will be distributed for free to legal educators.  Lexis has promised to make it available in electronic format through their e-book library and to provide print copies on request.  Look for it in four to six months — if all goes smoothly perhaps in time for the AALS Clinical Legal Education Conference in early May.

The coverage of Building on Best Practices is wide-ranging.  To quote from the Introduction, “[t]his volume builds on the call to link mission and outcomes; emphasizing the themes of integrating theory, doctrine and practice, developing the broader spectrum of skills needed by lawyers in the twenty-first century, and taking up the question how best to shift law school cultures to facilitate change.”

Advance praise for the book has included:

  • “[M]ilestone in legal education . . . that legal educators will rely on as much as . . . on the first Best Practices book.”  (Patty Roberts, William & Mary)
  • “Educational for folks who don’t know much about experiential education and insightful for those who do. . . .Really something to be proud of . . . an invaluable resource to schools as they go to work on implementing the ABA’s new requirements for learning outcomes and assessment. . .The perfect product coming out at the perfect time.” (Kate Kruse, Hamline)

Once again, CLEA deserves kudos for its support of an important scholarly project on legal education.  And the Georgia State University, University of New Mexico, Quinnipiac University, and University of Washington Law Schools deserve a big round of thanks for supporting the co-editors in this project.

*  https://perma.cc/ provides an archive for those annoying website links that quickly become outdated.

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The Baby Has Finally Been Birthed!

Posted on August 12, 2014 by Mary A. Lynch

Comprehensive revisions passed

The ABA House of Delegates passed the comprehensve revisions with “minimal  fuss” according to the ABA Journal linked  above.  One area, however, garnered  significant attention and also resulted in  an odd, though perhaps meaningless ,  procedural move.  The House voted  to send back to the Section on Legal Education for further consideration the comment to standard 305 which prohibits payment to students for credit-based courses.

What does this mean? Law schools which have not already done so must start identifying, articulating publicly and assessing student learning out outcomes, providing every student six  credits of clinic or clinic-like experiential courses and requiring students to take two credit hours worth of professional responsibility coursework.

Well, it’s a start……

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Five Tool Lawyers

Posted on April 29, 2014 by dmaranville

Leading Northwest legal practitioner and technology entrepreneur Marty Smith has an interesting post on the Five Tool Lawyer over at Legal Refresh. Using the metaphor of the Five Tool Lawyer, Marty breaks apart the stages of problem solving, incorporating risk analysis in a way I found helpful. In my response Five Tool Lawyers and Legal Education, I critique aspects of the Five Tool Lawyer metaphor for compressing too much into the 1st [Use interviewing skills to gather client facts, goals and needs] and 5th tools[Counsel, document, negotiate and advocate on behalf of client]. But here’s why I thought the metaphor was compelling:

"Compelling, because [it] moves beyond issue spotting v. problem solving to articulate the stages of problem solving, targeting a spotlight on often overlooked aspects. . . . By focusing on risk, the metaphor highlights two often neglected stages of the lawyer’s work – “use judgment to assess actual risks” and “problem solve for best way to meet client’s needs with minimal risk.” At the same time, it implicitly places the legal problem in the larger context of the individual’s life, or the business’s health. And it underscores the fact that lawyers need to know how to assess the significance of legal risks within that larger context."

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Building on Best Practices and the Clinical Theory Workshop

Posted on February 12, 2014 by dmaranville

Thought-provoking discussion at the NYLS Clinical Theory Workshop on Friday.

Definitions. Carrie Kaas reported on the “definitions” project of an Alliance for Experiential Education Committee chaired by Cindy Adcock of Charlotte. That committee is attempting to generate a common vocabulary around experiential learning — a set of common definitions for the overlapping and inconsistently used terms now in use. The Building on Best Practices project will need to decide whether to adopt that vocabulary, or not.

One of the most interesting, and challenging, tasks is to decide what differentiates an in-house clinic from an externship. Is it geography? Who pays the supervisor? A distinction rooted in pedagogy? Degree of independent role assumption? Or perhaps the distinction is no longer useful & and is ready to be junked?

I lean towards pedagogy & intensity of supervision, and degree of independent role assumption. Except when I lean towards junking the terminology and recognizing that we’re dealing with a continuum on multiple dimensions, as argued in Revision Quest: A Law School Guide to Designing Experiential Courses Involving Real Lawyering.

Sequencing. Cynthia Batt from Stetson presented her draft article on curriculum sequencing that is one of several independent articles spawned by the Building on Best Practices book project. Arguing for what I have termed the “layer cake” curriculum model, she conceded that the model is not necessarily the “only” or “best” model. But, she suggested, at schools where significant numbers of faculty are resistant to integrating experiential education throughout the curriculum, whether due to insecurity about lack of practice experience, fear of change, or other reasons, it is one that might have the best chance of implementation. Fair enough. A reminder to me that I’m at a school with relatively little resistance to experiential education.

Under the Radar Creativity. Cynthia made another comment that I’ve been pondering: “I am so impressed with my colleagues’ creativity, the kinds of work they are having students do that no one else knew about. Why are people so reluctant to talk about experiential education embedded in ‘traditional’ doctrinal education?”

That creativity certainly permeates my own law school. Based on a survey last spring, my colleagues are integrating experiential exercises into over 50 doctrinal courses. And they’ve created a long list of very creative simulation oriented courses, ranging from Venture Capital Deals to Supreme Court Decision Making to International Contracting.

So much of this creativity operates pretty “under the radar screen”. But I’m not sure it’s reluctance exactly. Lack of time? Lack of an appropriate forum? Understated, we-don’t-blow-our-own-horn Seattle manners?

I don’t know. But if our two schools at opposite corners of the country are representative, perhaps legal education has changed more than we know. Are we approaching a tipping point?

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SRC voted to eliminate Interpretation 305-3 which distinguishes paid employment from academic field placements

Posted on February 10, 2014 by Mary A. Lynch

American Bar Association Accreditation Standard 305  addresses “study outside the classroom” and, in particular, field placement courses.  Interpretation 305-3 states:

A law school may not grant credit to a student for participation in a field placement program for which the student receives compensation. This Interpretation does not preclude reimbursement of reasonable out-of-pocket expenses related to the field placement.

The written submission by the Clinical Legal Education Association (CLEA) filed January 31, 2014 (found here or on ABA site) argues

To revoke this regulation would give employers in paid field placements significantly more power both to control student work and to minimize the employer’s supervisory role, and would significantly reduce externship faculty control over the educational benefit of the placement.

This is a real concern. When I directed Albany’s field placement program, I often had to discuss with supervisors the difference between their treatment of academic interns and paid clerks. For example, throwing an inexperienced student into night court without direct attorney supervision may free up the evening of the harried assistant public defender or assistant prosecutor but it fails to teach the intern the constitutional way to practice law. And, if you pay the interns you may well be entitled to assign them to pick up your dry cleaning or walk your dog because your time is more valuable, however those activities are hardly educational. These were actual issues I addressed and was able to resolve in favor of the students educational experience because the employer had no money in the pot and needed to follow the requirements of the law school. That leverage will be undercut if interpretation 305(3) is removed.

I also agree with CLEA’s position that

……nothing suggests that field placement courses are displacing a large volume of paid part-time work for law students. To the contrary, pervasive anecdotal evidence suggests that employers are unable to pay and would prefer that students work without pay. Field placement directors (and placement offices) routinely field requests from employers who seek to offer unpaid work through a field placement experience. Nothing suggests an increased demand by employers to pay students who are also getting credit.

If anything, during difficult economic times, law students need the negotiating power of an experienced attorney and faculty member even more, since they are more vulnerable to exploitation by employers. I urge the Council to keep Interpretation 305 (3) in place to protect the educational quality of field placements. As discussed in another earlier post, during Thursday’s public hearing before Council members, Interpretation 305 (3) was discussed, including the applicability of the Fair Labor Standards Act, possible exploitation of students, and the problem of differing expectations regarding treatment of paid and unpaid interns. These issues are complicated and deserve further attention. With the SRC members deciding to complete the comprehensive review at the February meeting and leave issues which need more data and input for another day, it was surprising, in my opinion, to observe them move so quickly on the proposal to remove 305-3 without a more informed vetting of the issues.

Disclosure: I was recently elected co-vice president of CLEA. However, I was not responsible for the CLEA position letter on this interpretation. When writing on this blog, I do not represent CLEA.

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