Thursday, July 11, 2013
Clinical Legal Education and the Future of the Academy
I may be naive, but it's mystifying to me that there's still serious debate over the value and import of clinical legal education. I admit that I'm not an objective observer -- participating in a clinic as a law student was the most valuable thing I did during those three years, and I've spent the past decade happily teaching in a clinical setting. Yet, given the dramatic drop in law school applications combined with the collapsing job market and escalating student debt, I'm surprised that more law school deans aren't promoting clinical and experiential education, as it may be one of the best strategies for keeping American law schools afloat.
Although this reality is slowly dawning on some law school administrators (and development officers) at places like Washington & Lee, UC-Irvine, and CUNY, it's those who regulate admission to the bar along with leaders of the practicing bar who are taking the lead. In recent months, rule changes in New York, Arizona, and California and important reports issued in New York and Illinois reflect the shifting landscape. In New York, a report by the state bar called for an expansion on the cap on clinical credits, leading the NY Court of Appeals to acknowledge that supervision by law school clinics was the "gold standard" and to amend its bar admission rules so that as many as 30 of 83 law school credits may come from clinical courses. The NY court also allowed work done in clinics to apply to the new 50 hour pro bono bar admission requirement.
Meanwhile, in California the state bar is considering a bar admission requirement that applicants complete at least 15 academic credits of practice-based, competency skills courses during law school or participate in an internship or clerkship; 50 hours of legal services devoted to pro bono or modest means clients, either before or after admission; and 10 extra hours of Minimum Continuing Legal Education (MCLE) after admission, specifically focused on competency skills training. The State Bar's Task Force on Admissions Regulation Reform unanimously approved the draft proposal in June; the proposal needs only approval from the full Board of Trustees and California Supreme Court. Given that California is the largest bar in the country, any change in their admission requirements will be closely followed by others.
Arizona has taken a different approach, amending its bar admission rules to allow law students to take the bar exam in February of their third year, provided they have no fewer than 8 credits left to complete. At the University of Arizona, third year law students will spend the first two months of that year studying for the bar exam and participating in an 8-10 week "theory to practice" residency that is "designed to explore real-world, practical topics relevant to legal professionals, such as applied ethics and professionalism, economics of modern law practice, cutting-edge issues in policy and law and how to better serve client needs."
Perhaps most dramatic, the Illinois State Bar Association has issued a report urging law schools to transform the second and third years "to help students transition to practice through apprenticeships in practice settings, practical courses, and teaching assistantships, rather than more traditional doctrinal courses." The report also called for the full inclusion of clinical and legal writing faculty in law school governance.
On the national level, members of the Clinical Legal Education Association (CLEA) have petitioned the ABA Task Force on the Future of Legal Education and the ABA Section for Legal Education and Admissions to the Bar to require at least 15 credits of professional skills instruction.
Having served for several years on the admissions committee at UNC, including this past year as chair, I can attest to the fact that prospective students are consistently heartened to hear about clinical and experiential opportunities in our law school curriculum. I can also share from my own teaching evaluations as well as those of my clinic colleagues (which I now review as interim clinic director) that our third year students repeatedly say the clinic was their best course/experience in law school. Likewise, my experience practicing among the bar and alongside Carolina alumni has confirmed that prospective employers and donors are also strongly supportive of "transition to practice" type courses, externships as well as clinical course offerings. They recognize that otherwise, the responsibility and cost of training and preparation for practice falls to employers, clients, and the graduates themselves -- something that the down economy can no longer subsidize. In addition and of particular importance to me, when law schools fail to endorse skills and professional training in their curricula, this disproportionately disadvantages students who are unable to afford/independently finance alternative opportunities for training.
Yet, the legal academy has continued to drag its proverbial feet, a fact acknowledged by the California task force, which disapprovingly noted "the persistent, unresolved debate in the legal academy about whether clinical legal education ought to be a mandatory part of the standard legal education curriculum." More than twenty years after the dissemination of foundational studies recognizing the import of experiential legal education, including the MacCrate Report and the more recent Carnegie Report by my colleague Judith Wegner et al. and Best Practices for Legal Education by Roy Stuckey et al., students can graduate from an ABA-accredited law school and sit for the bar having met only the minimum ABA accreditation requirement of a single credit (out of an average of 89 academic credits) of professional skills, meaning that they can be deemed ready to practice law without ever handling a client's legal problem. In contrast, other professions -- including medicine, veterinary medicine, architecture, social work, dentistry and pharmacy -- require at least one quarter, and up to more than one half, of a student's pre-licencing education be fulfilled by in-role supervised professional practice.
So, why the academy's reluctance to mandate that professional skills training and experiential learning be a foundational part of the curriculum -- and that faculty who teach in these areas receive comparable pay and voting rights? As for the first part of the equation, the usual retorts that such courses are too expensive and too difficult to implement are losing their teeth, as more than a dozen law schools -- both public and private, rural and urban -- have worked hard to provide cost-effective ways to mandate clinical education, and many more now guarantee a clinical experience for every student (see Karen Tokarz et al., "Clinic Requirements, Clinic Guarantees, and the Case for Experiential Pluralism: The New, Improved American Law School Curriculum," 43 WASH. U. J.L. & POL’Y (forthcoming fall 2013)). As for the issue of faculty status, my personal feeling is that until the schools at the top dismantle the hierarchy in which clinicians are second or third class citizens, the majority will not follow.
Your thoughts? Please share in the comments.
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I'm a huge fan of clinical education, and I think it's very valuable to students.
With that said, isn't the main reason schools don't embrace it more just a matter of cost? This past year, I taught 140 students in the fall and 210 students in the spring -- an average of 175 students each semester. In contrast, I understand that clinicians realistically max out at about 8 students per semester. If non-clinical profs can teach on the order of 20x the number of students than clinicians can teach, then I would think that schools might be reluctant to mandate a clinical requirement because it could seem too costly. There may ways around that cost, but I would guess that it has some amount to do with why schools currently approach clinical education as they do.
Posted by: Orin Kerr | Jul 11, 2013 1:04:39 AM
(Oh, and in response to your last paragraph -- my apologies I missed it earlier -- do you have a copy of the Tokarz article? It doesn't appear to be on SSRN and it's not on Westlaw. Or just a summary of how schools have lowered the costs of clinics would be great.)
Posted by: Orin Kerr | Jul 11, 2013 1:13:10 AM
Orin: I don't believe that the Tokarz article is publicly available yet, but I'll double check. However, here is a excerpt addressing feasibility from the 7/1/13 CLEA comment to the ABA on the proposal to require 15 credits in experiential courses (available here: http://www.cleaweb.org/Resources/Documents/2013-01-07%20CLEA%2015%20credits.pdf):
"Seventeen law schools already mandate some form of clinical education, and at least a dozen more guarantee a clinical opportunity to all their students.16 And the programs of these thirty schools are not the only evidence that a clinical requirement is both feasible and practical. According to ABA data, 139 law schools (or 69%) already have the law clinic and externship course capacity to provide each of their J.D. students with a clinical experience.17 Another 11 law schools already offer enough law clinic or externship course positions for 90% of its students, and another 16 offer enough slots for 80%. Since 83% of law schools either already are or are easily capable of ensuring that every student have a clinical experience, implementing a clinical requirement is immediately feasible.
Moreover, the claim that experiential learning in practice settings is too expensive is made without empirical support. Preliminary research comparing the average tuition at schools that require or guarantee each student a law clinic or externship with tuition at schools that do not reveals that tuition is not statistically higher at the seventeen schools with a clinical mandate than at those without that requirement. That data is illustrated in Chart 1, attached to this letter. Similarly, tuition is not statistically higher at schools that guarantee a clinical experience than at schools that do not, as illustrated by Chart 2. The data suggests that the predominant determinant of tuition differences among schools is U.S. News ranking, not clinical learning."
Granted, this is not the whole story, but after 10 years in the academy, I'm convinced that hard choices can be made in terms of the composition of law faculties so that it's feasible to provide every student with a clinical experience. It may not be embraced by all, but it has been done.
Thanks so much for commenting.
Posted by: Tamar Birckhead | Jul 11, 2013 1:53:38 AM
I don't see how Tamar has answered the question about cost. Tuition is a nominal number so those correlations don't seem to mean very much.
At the end of the day, revenue generated per student minus cost of education each student determines the profitability of a law school.
Also, I don't think the clinic is the only way to get skills/experiential training. Good "doctrinal" (a silly term that falsely cabins faculty groups) faculty members builds aspects of such training into their courses.
A much more effective way to reduce costs would be to use MOOCs and then redeploy "doctrinal" faculty to supplement the main lecture with small groups of students engaging in various forms of teaching (mock negotiations, drafting, etc.)
Posted by: anon | Jul 11, 2013 2:23:03 AM
Thanks, Tamar. Looking over the document you cite, it sounds like they are including externships as forms of clinical education That wasn't intuitive to me. To the extent they are all included, I agree that you could have a cheap clinical education program. But I think you would do that by having externships instead of (or mostly in the place of) clinics.
In terms of cost, if we assume that all the clinical spots are in clinics rather than in externships, we might run ballpark numbers like this: If a clinician teaches 8 students a semester, and a school has (say) 400 students in a class year, you would need 200 clinic spots per semester to give each student a spot in a clinic. That would require 25 clinicians full time to teach them. In contrast, if a typical non-clinician might teach 65 students a semester, we would only need 3 professors to teach those students. So we would need to hire 22 extra professors. If a typical law school has somewhere around 50 professors today, that's around a 40%-45% expansion of the faculty. If we assume that those 22 extra professors are paid at the rate of non-clinical professors, that's a a 40%-45% increase for the largest item in most law school budgets, faculty salary. Then there's the need for more offices, secretarial help, etc. Of course, that's assuming that the students are in clinics rather than externships; I agree it gets much cheaper to the extent students are put into externships instead of clinics.
Posted by: Orin Kerr | Jul 11, 2013 3:08:54 AM
I find it odd that CLEA does not mention externships -- at all -- or push for the incorporation of externships as a key component of "experiential learning" incident to its recent push to get the ABA/AALS to ensure full employment for clinical law faculty. Externships are cost effective and, unlike most clinics, can and do lead directly to post-graduation full time employment. Externship programs do not involve battalions of clinical faculty members, however. Perhaps that is why CLEA does not bother to mention them?
CLEA's effort is a rather obvious and blatant effort at securing their members' place on the life boats as law deans and faculties look for ways to economize in order to close budget deficits. Anyone with a net teaching load of 8 students per semester is simply not affordable for a law school with an entering class of 150-300 students. And, providing at least 16 hours of such instruction, for 200-300 students, at an 8:1 ratio is financially unthinkable. Unless clinical faculty are willing to work for the salaries associated with legal aid offices and the lowest paying non-profits (i.e., under $50K annually), it is simply not possible for most law schools to require every student to have 16 hours of clinical instruction without radical increases in tuition.
Let me also add this: if a law school is charging $35-$50K per year, the kinds of practice experience most clinics provide will not in any way, shape, or form make it possible for graduating students to practice in these areas and also pay off their law school (and college) debt. Clinics are almost always based around serving under-served communities (DV, criminal law, government benefits, immigration, low income tax filings/EITC, human rights), not how to handle an IPO, register a patent, or handle a major corporate bankruptcy. Or how to undertake corporate litigation against an Fortune 500 insurance company. Etc. Unless law clinics can establish that what they inculcate makes the current law school cost structure feasible for the vast majority of students, they are selling a product that will not solve the problem of newly minted JDs graduating with a crushing debt load and no realistic opportunity to repay it via JD-required full time work. Handling DUIs, DV TROs, and EITC tax filings simply won't pay the bills -- at least if JD tuition is in the $30K-$50K range.
I also would suggest that advocates of "experiential" training take a very close look at W & L's employment statistics -- which are the worst among law schools in the T40 cohort. If the new W & L 3L program were creating newly minted JDs ready and able to practice, and demonstrably better at this than students graduated from comparable regional law schools (e.g., William and Mary; Emory; GWU) legal employers would presumably be falling all over themselves to hire W & L graduates. Plainly, this just isn't happening. So, before citing W & L as a reason for other law schools to follow this model, perhaps greater attention should be paid to the actual employment outcomes for W & L's graduates? In this regard, I would recommend Deborah Jones Merritt's excellent recent post.
In short, the notion that an all practice upper level curriculum will result in better employment outcomes for graduates is an entirely unproven assertion. And, the available evidence suggests that the problem with employment outcomes has little or nothing to do with the current JD curriculum.
To be clear, I do not oppose clinical legal education; it should be available for law students interested in gaining legal education using clinical teaching methodologies. But, markets are efficient; if clinics deliver real educational benefits, law students will enroll in them without a regulatory mandate to do so.
A mandatory minimum number of clinical credit hours will primarily benefit one group and one group only: incumbent clinical faculty members. Hopefully the ABA and AALS will recognize this and decline to mandate minimum clinical instruction (unless they are also planning to print the money needed to pay for it).
Posted by: Gumby | Jul 11, 2013 3:30:02 AM
For the record, and to be entirely fair, here is the precise language from CLEA President Kate Kruse's press release:
"Today, the Clinical Legal Education Association (CLEA), the nation’s largest association of law professors, formally petitioned Council of the American Bar Association’s Section for Legal Education and Admissions to the Bar to amend its law school accreditation standards to require every J.D. law student to complete the equivalent of at least 15 semester credit hours after the first year of law school in practice-based, experiential courses, such as law clinics, field placements, or skills simulation courses, with at least one course in a law clinic or externship."
I'll concede that the word "externship" does appear once -- quite literally at the very end of the description of classes that would meet the proposed mandate. Whereas the first suggested option is "law clinics." I stand by my assertion that a principal motivation for this initiative is job security for clinicians.
I also would note that many, if not most, law students spend the rising 3L and/or rising 2L summers working in law firms or other legal offices (government offices, judges' chambers, with non-profits like NAACP LDF, etc.). I do not see why this supervised training over the summer months is not directly relevant, and responsive, to the question of whether JD students currently receive adequate practical training before graduation. Surely a 40 hour per week job, for ten or more weeks, in a law office or the like must inculcate at least some sense of how one goes about practicing law. . .
This strikes me as a solution in search of a problem. However, I would agree with TB that law students who wish to enroll in clinics should be have the option of doing so (but without being required to do so). At least at some law schools, this represents the current status quo. A more modest proposal would be to require that experiential learning opportunities, including law clinics, be available to enrolled students at all ABA/AALS approved law schools. I would have no problem with a general requirement of this sort -- certainly students who desire clinical legal education should be able to obtain it. But we have had this rule in place since McCrate, have we not?
Posted by: Gumby | Jul 11, 2013 3:57:29 AM
Orin makes excellent points. I participated in both a clinic and an externship in law school. The externship was much more valuable, even though the clinic (a tax clinic) was much closer to types of law that we might actually practice than our environmental or social justice type clinic. Also, the externship was almost completely free to the school (we did have an externship class that met once a week, with all the students doing externships). The clinic must have been extremely expensive, and if you are going to get lure excellent clinical professors you are going to have to pay them a boatload. I understand why doctrinal professor take a pay cut from practice - quite the life - but continuing to practice law and replacing experienced associates with clueless law students does not sound like a good trade. Therefore, you would have to pay the clinical professors what they could make in the open market (big bucks for the ones that do real law firm work well) OR get stuck with ones that could not hack it (or have an axe to grind and no one to pay for it in the real world).
Posted by: Joey | Jul 11, 2013 8:34:09 AM
Tamar, Please explain why a robust externship program, perhaps coupled with a class, taught to 80 or students does not work? In externships, presumably, students will get experience doing law that someone will actually pay for and they will also make valuable connections with practicing attorneys - all at little cost to the school (and ultimately the students). I do see the value in clinical education, but, if done right, it is exponentially more expensive than our current system.
Posted by: TA | Jul 11, 2013 9:04:40 AM
Orin et al.: Thanks for your comments. First of all, I'm not suggesting that clinics are "better than" externship programs or that one should necessarily be valued above the other. They each play an important role in a law school's experiential offerings and they each have great strengths as well as some limitations. It's counterproductive to encourage an us vs. them dynamic in this context, and as such, it obscures the real issues here, which are the consistently-overlooked value of experiential education, the failure of many schools to promote it and make it available to the students who want/need it, and the continued marginalization of clinical faculty, including those who teach in externship programs (not to mention legal writing professors, which would warrant a whole separate -- though related -- discussion). CLEA, by the way, does indeed include externships in its model, referencing them explicitly as well as with the term "field placements."
Although I personally have not conducted empirical work in this area, when crunching the numbers, I encourage you to keep in mind that there is a false equivalency when you try to compare a "clinic" with a "doctrinal course." Students who participate in a clinic/externship generally earn more credits than those who take a single doctrinal class. For instance, students who take a year-long clinic at UNC can earn upwards of 12 credits (and many more at other schools), a reflection of the time commitment involved and the fact that there's typically a classroom component to the live-clinic course. So, to say that you can teach 150-200 students/semester in a 3-4 credit class is not a completely fair comparison.
Also, I've reached out to Bob Kuehn at Wash U who is the author of the data in the CLEA comments/proposal, and he makes these very valid points:
"First, the 15 credit proposal can be met in a variety of ways, including (to the extent that cost alone is an issue) very cheap simulations (read as likely taught by adjuncts), relatively cheap externships (but not the 80 students/prof suggested by one commentator; anything above 25 is problematic, and even that number troubles some externship faculty), and more expensive clinics.
Second, as for the mandatory clinic/externship requirement, again that can be met through a combination of approaches and, as you'll see the data shows, 139 schools already have sufficient capacity, without adding another clinical course or faculty member, to meet that requirement.
Finally, the issue should be the cost effectiveness of various approaches, not cost. If cost were the only issue, we'd have no seminars or likely any classes below 25 or 30 and cut out lots of other activities that students pay for (scholarship by faculty?). Law schools shouldn't be in the business of trying to make money off class size but instead trying to figure out what students need to learn to effectively practice law and the best means to achieve that goal. Sadly, that debate is missing from the blog comments."
Thanks, again, to all.
Posted by: Tamar Birckhead | Jul 11, 2013 9:37:35 AM
I also found my clinic to be one of the best educational experiences I had in law school. And I agree with some other commenters that externships are not a substitute for clinics, so data that folds them together as experiential education tends to obscure more than illuminate. School-sponsored and structured externships have value, of course (though I am not aware of empirical evidence demonstrating that they lead to more employment opportunities than clinical education or simply informal term-time internships). And some clinics hew less to the ideal clinical model (where the student is fully responsible for the case and does everything an admitted lawyer would do) than others. But in general, in-house clinics are the best way for students to learn how to practice law. But they are extremely expensive -- I am not sure how to get around that. One possibility is to do a better job hiring professors who can teach both clinically and non-clinically, at the same time that we increase course-load -- then every professor could teach both a clinic to a small group of students and at least one non-clinical course to a large group of students. I am not sure this would even work, and I am positive that it would be met with lots of opposition.
For those commenters who argue that clinics are less than useful because the clients and subject matter are not representative of where most lawyers end up practicing, I am wondering if this is from your own experience in taking a clinic or just your assumption. My experience, the experience of my colleagues in law school, and the experience of my students is completely the opposite. That is, most of the people I know who have taken clinics did not end up practicing in the area that the clinic focused on, yet they found what they learned (client interviewing, collaboration, theorizing the case, dealing with opposing counsel, preparing for and taking a deposition, preparing for and conducting a court appearance or settlement conference, etc.) to be quite transferable. Indeed, I think it is a mistake when students choose a clinic solely because of the subject matter -- I advise them to choose based on whether the clinic treats the students as attorneys and lawyers on the case rather than interns. The utility of clinics may decrease as one moves from the litigation side of things to transactional work – there are not enough transactional clinics and litigation-based clinics may not be as useful for preparing students for transactional work. But I would not be surprised if even transactional lawyers who took clinics report that their educational experience was awfully useful.
Posted by: Alex Reinert | Jul 11, 2013 9:38:27 AM
I did externships and clinic during law school, supervised numerous externs while in practice, and now teach in a clinic. I loved my externships, which helped introduce me to the legal community where I wanted to practice and showed me which kinds of work seemed most satisfying to which kinds of lawyers. But my externships did not teach me to be a lawyer the way my clinic did. In externships, I did the discrete tasks that the supervisors asked me to do (and I had generally wonderful, encouraging supervisors), but I did not have responsibility for planning the initial client interviews, assessing their various claims, counseling them, developing case strategies and so forth, the way I had in clinic. The responsibility of being the lawyer, not merely a helper on the case, had a profound impact on me, and I see the same impact with almost every student I have supervised since.
The experience of being the client's lawyer, available only in clinic, was immensely helpful to me as I launched into my career--I felt capable of diagnosing legal issues, considering cases from different angles, and developing the appropriate legal responses, none of which were skills that externships focused on developing, wonderful as those experiences were.
Posted by: Liz | Jul 11, 2013 9:48:48 AM
If we start to splinter and divide along artificially constructed lines - clinical, doctrinal, externship, skills, theory, practice, Snitches? - we will have lost the battle to preserve academic freedom while redeeming the reputation of law schools. Law schools were and can be again viewed as critical partners in the development of civic and justice professionals as well as of the theories to reform and improve our justice and legal systems. Because I believe this is the approach which will move legal education forward even in this necessary cost-cutting economic environment, it was so incredibly sad to see a lost opportunity in Vic Fleischer's NYT article (http://bestpracticeslegaled.albanylawblogs.org/2013/07/10/nyt-the-unseen-costs-of-cutting-law-school-faculty/#comment-16845 ). What could have been a wonderful enlightening article in the NYT on the unseen costs of treating faculty members like dispensable widgets, turned at the end of the article into a reductive and uninformed version of the lifeboat scenario - with clinical faculty members being treated like the lower deck passengers on the Titanic. The article also failed to address law student debt and the value added to law grads lives of law school tuition dollars. This is where Vic's clinical colleagues could help the large holes in his argument. His clinical colleagues across the nation have directly fought the political interference argument on behalf of academic freedom. In addition, integrating the teaching of theory and doctrine with the development of the skills we KNOW are needed to help our students find employment (thank you Schultz and Zedeck and Richard Susskind) is exactly the "value added" that prospective students desire. Let's not let panic throw us into an "EVERY FACULTY MEMBER FOR HIMSELF" mode. That is the best way for the legal academy to lose everything in the difficult year ahead.
Posted by: Mary Lynch | Jul 11, 2013 11:09:02 AM
I am deeply interested in the question of the cost of higher education -- legal or otherwise. But I am more interested in the question of the value of education. As background I have taught in Clinics, large doctrinal courses, skills (simulation) courses, and internship programs. I have created and directed clinical programs, written a lot of successful grants for such programs, and now I act at the University level considering (and making judgments about) serious questions of cost and value across three separate schools and a large number of departments, programs, centers, institutes, etc. We should ask what is the most education value we can give our students -- not how do we give students the cheapest product for what they pay....
But, if law faculty would like to have a serious discussion about costs, then we should have that discussion -- but to me it is only a starting point and never a decision driver in and of itself. "Cost" is one of the most simple ways to approach the issue of modern legal education. That said, let us dive in to review some of the costs of law schools....
Does a clinic "cost" more than a classroom with 100 students in a lecture format? Indeed it does in a basic "contact hour" way. But why should large classes top at 100? Why not 300? There really is no pedagogically observable difference between these two class sizes. Why not put doctrinal first year courses entirely online for minimal repeating cost -- or at least create hybrids where law Professors teach only one class a week while the knowledge information is digested by students online with the class time being spent contextualizing? This will allow one professor to easily teach three or four sections of, say, Criminal Law each semester thereby significantly reducing instructional costs. And we must remember that doctrinal professors are paid way better than clinical faculty almost everywhere thereby making savings in that realm so much more effective. Larger classes, hybrid and online courses -- huge savings!
Also, too, eliminate seminars. Now THOSE are expensive. Highly paid and benefited professors teaching half a dozen students in a format which often becomes largely self-study? And that course counts toward the Professor's course work load? Why are those Professors not teaching 100 plus students in every class thereby increasing revenue and lowering costs? Seminars, depending on work load can end up being more expensive in contact hour terms than clinics.
Speaking of workload, if cost is our guiding light, we could get serious about increasing course loads for us doctrinal faculty. It has been slipping for years. What used to be a 12-plus credits-per-year standard is somehow now a 10-if-you-have-to load. Or something like three classes each year at a number of our more expensive institutions. Implementing a 3-2 course work load, like our faculty brothers and sisters generally have in other parts of the academy, would really help bring down costs. Five classes of more than a hundred students. What faculty savings could be realized!
And scholarship. This is a real burden for tuition driven schools like mine. If a presumptive work load looks something like 40% teaching, 40% scholarship and 20% service per year, then the average medium paid law professor is expending $50-60,000 a year working on, promoting and researching their scholarship. Now that is salary alone. Add 30% in benefits, research assistant costs, support systems for that scholarship, etc.; and every year every professor is using up the tuition and fees of at least two students. OK, maybe if you are productive and excellent (although what that brings in as revenue in our cost-only discussion is minimal). Otherwise, a questionable cost, perhaps even theft from our students. One could require both quantity and quality scholarship output annually (or over a three year period if you like) from Professors as a condition of their continuing employment --or if you think that is too harsh on individuals, make it a condition of accreditation like the AACSB does for business schools. Maybe not too any savings, but at least the student's dollars would be seen as promoting production. Or perhaps scholarship should be entirely grant driven as it is in many disciplines (but really, who will give grants to most law faculty for their work?)
So let's do talk about costs, if that is what really animates people. And in so doing, I would suggest we look at the areas of the greatest savings -- namely ourselves and our behavior -- rather than at the least paid among us.
But my experience is that many doctrinal faculty in the "clinics cost too much" camp are not really interested in that cost discussion when applied to them. Many feel that their deal is the natural norm and that they have the privilege and entitlement to judge from a position where no one will ever think to ask them for anything.
But as I said, cost-alone analysis should never be determinative, but rather justifying the student education value is the key to this discussion. And experiential learning (although perhaps more costly) is very high value for students, enrollment recruiters, advancement people, school grant writers, and so on.
Posted by: Jeff Pokorak | Jul 11, 2013 11:09:39 AM
With regard to value, we do have some data on the relative merits of curricular offerings in preparing students for the practice (skills) and profession (civic commitments) of law: http://ssrn.com/abstract=1498844 ("with data from a new, nationally representative survey of early-career attorneys in the United States, this article explores evidence of clinical education’s impact in the skills and civic dimensions of lawyer training. In the skills dimension, new lawyers rate clinical training more highly for making the transition to the actual practice of law than many other law school experiences, particularly the doctrinal core frequently the object of the standard critique. In the civic dimension, the study finds no evidence of a relationship between clinical training experiences and new lawyers’ pro bono service, and no consistent evidence of a relationship between clinical training experiences and new lawyers’ civic participation. Although there is no evidence of a general relationship between clinical training experiences and public service employment, the study finds a strong relationship between clinical training and career choice for those young attorneys who recall that they came into law hoping to improve society or help individuals. For this group of new lawyers, clinical training may have been an important factor in sustaining their original civic commitments."
My guess, as with most most studies, is that people will find evidence that supports their pre-existing, deeply-held beliefs. We'll probably need to relax our stances if we are to bridge some of these assumptions in the interest of a collective response to the challenges facing legal education and the profession.
Posted by: Jeff Selbin | Jul 11, 2013 11:44:16 AM
Thank you for discussing this important subject. I have a post at the Legal Skills Prof Blog, which shows that general education scholarship supports the CLEA proposal and the value of experiential education in law schools. You can find the post at http://lawprofessors.typepad.com/legal_skills/2013/07/general-education-research-supports-cleas-petition-to-require-15-credits-of-experiential-credits.html. Legal education reform should not ignore the large amount of education scholarship that has been done in other fields.
Posted by: Scott Fruehwald | Jul 11, 2013 12:11:11 PM
The surveys cited in the comments thread ask and answer the wrong question. The surveys ask the choir if they enjoy the service; they do not ask legal employers if there is a discernible difference in the competence and ability of junior lawyers with significant clinical training (versus those without it) to perform JD-required jobs. We need to know whether employers find clinical experience useful to their operations and practice--particularly employers who offer starting salaries sufficient to permit newly-minted JDs to retire their law school debt, i.e., not legal aid offices. A better empirical approach might be to survey legal employers to ask whether they affirmatively seek out candidates with clinical training or whether they are largely indifferent (i.e., focus on other metrics such as class rank and GPA). In fact, the fairest way to approach the question is with an open-ended survey without asking a leading question that may produce a pro-clinical-education false positive.
Posted by: Guild Skeptic | Jul 11, 2013 1:20:02 PM
The critiques of legal education all call for more formative feedback, more hands-on learning, and more exposure to a broader range of lawyering skills. To heed those calls, law schools do need to teach students in smaller sections, employing a variety of pedagogical methods. It is true that all experiential education--clinics, externships, simulation courses--require lower student-faculty ratios than large lectures. But the idea that classes with enrollments of 200+ students is the "gold standard" against which the cost of all other courses should be judged is wrong at its core. The Socratic method is also more effective in a class of 60 (where students will get called on multiple times) than it is in a class of 200+. If we want law professors to provide meaningful formative feedback on mid-term exams and other assignments instead of assessing students only on the basis of their performance on one final exam, that is also done more effectively in courses that do not have mega-enrollments.
However, let's not fall into despair about the possibility of being more pedagogically sound. The truth is that law schools already offer many courses in smaller sections (not just clinics). Many so-called "doctrinal" professors regularly teach lower-enrollment courses like seminars(and, in schools that do not have class sizes as large as 400, many upper-level non-bar course electives also have relatively low enrollments). And, many so-called "clinical" professors also teach high-enrollment first-year or bar courses as part of their regular teaching load. The question is how to create a balanced faculty whose talents can be deployed across multiple learning environments.
The silver lining to the cloud cast by the drop in law school enrollments is that it gives schools an opportunity to be more creative in their pedagogical methods with smaller section sizes across the board. I agree with other posts that say that not all professional skills courses are the same. Simulations, externships, and clinics each have unique benefits and are most effective when students progress through a series of different experiential learning opportunities, rather than trading one for another. The current 1-credit skills requirement in the ABA standards does not encourage a breadth of skills instruction, nor does the proposal currently in the Standards Review Committee to raise the number of credits to 3. The movement to amend state bar admissions requirements in large and influential states such as California and New York recognizes that students need more robust skills instruction.
Posted by: Kate Kruse | Jul 11, 2013 1:40:26 PM
I just thought I would share a great set of resources for all faculty looking to incorporate more experiential and practical problem-solving skills into their courses (particularly non-clinic courses) created by the Legal Education, ADR, and Practical Problem-Solving (LEAPS) Project of the ABA Section of Dispute Resolution’s Law Schools Committee. They have a website (http://leaps.uoregon.edu/) with the following resources available:
- Descriptions of various teaching methodologies
- Suggestions for how to engage colleagues in teaching more Practical Problem Solving in their courses
- Possible “talking points” for discussing the incorporation of Practical Problem Solving into doctrinal courses
- A survey of how schools integrate practical problem-solving skills in their J.D. curricula
- Lists of consultants who can help on specific courses
- Suggestions for making discussions with faculty as productive as possible, including PowerPoints
- Examples of course exercises, approaches to introducing Practical Problem Solving in doctrinal courses and other teaching materials
- Links to relevant resources on other websites
Posted by: Alyson Carrel | Jul 11, 2013 2:46:39 PM
Some amount of clinical and experiential learning makes sense. But it largely gives law students what they think they will need as lawyers not necessarily what lawyers will need. It is driven by the demands of 20 somethings who watch too much TV.
It also responds heavily to the political agendas of the kinds of lawyers who dominate in clinical settings, again an arena in which there may be a huge need for legal services but not one that is likely to prove attractive to most law students once they get out of law school. We are all familiar with the surveys law schools do of students when they enter law school - a huge interest in public interest law - and where they are when they graduate or five years later. There may also be some attempt by law school applicants and recent admits to cater to what they perceive as the public interest bias of the law schools.
And in the final analysis, no matter the level of the clinical experience it can never replicate the intensity of actually being thrown in the deep end once one is inside an actual law firm of legal department. We should stop kidding ourselves about what law "school" can do as opposed to the school of hard knocks. Law schools should largely concentrate on what they can do best - getting students to think and learn about the law in a setting they will never again in their careers have the opportunity to experience.
I should also point out that while many of the law school critics are taking great joy in the recent serious difficulties facing a small number of schools it is also the case that the "crisis" has been here for five years now. Many law schools have already adjusted to the changing environment. And the one thing we know is that the current situation will change. And in all likelihood the change will be towards an improvement in the overall economic situation that will in turn increase demand for lawyers. Dramatic changes now on the basis of what happened to the economy four years ago are terribly short sighted, a point made admirably by Vic Fleischer in the Times even if it did seem to some he was throwing his clinical colleagues under the bus.
Posted by: Steve Diamond | Jul 11, 2013 3:05:39 PM
I am a graduate of the David A Clarke School of Law where clinic was required every year. I came out of law school prepared and confident I could practice law. I can remember getting my first job and within a few weeks I was conducting administrative hearings. Not long after, I was in court. I am not saying I was great but I understood the process of law because of clinic. I knew what a clerk was; I knew what a complaint was; I knew you had to be in court on time when the notice stated.
The cost issue being raised here, as expected, wasn't much of an issue because the school is a social justice/apprenticeship law school. I had externships when I was there as well and they were pretty much worthless. I got to hang out with lawyers but I did not do anything that lawyers do. In the clinics, however, I did lawyer work. I am a clinical teacher now and our students do what lawyers do. I am obviously biased. I think clinics should receive more support, not less and what might be sacrificed in cost is made up for easily because the students receive the most important part of their education in law school. Sure, they have to pass the bar but they also need skills, and a chance to practice those skills and hone them.
I do not have to tell anyone here what students are saying about the courses more and more. They think most of it is a waste of their precious cash. They come to clinic and they are overjoyed once they begin to do what they came to law school to learn how to do. I just wish I could give them more work but their time is tight.
To reduce this to the cost of credit is, to me, another attempt to diminish clinics and clinicians which is par for the course. It has been going on ever since I can remember. If the value of the education that clinics provide were honestly considered, most would agree the experience students have is very valuable to the law school. We are not talking simulations. We are talking real cases with real clients in a real court or at a real law office. Negotiation, litigation, professional decision making just like residents at hospitals when they are training are making. We should want more of that. Students should begin to be allowed to take some of their courses before law school so when they get to law school, they can practice more and work on their skills more: writing, drafting, mediation, negotiation, etc. But if this struggle is reduced to cost per credit, we will have failed to understand the future. In other words, we should make it so students can take on more clinical work (students can;t commit like they want because of the other credits they must take)
Posted by: Brian Gilmore | Jul 11, 2013 4:02:11 PM
This is a good topic, and I've enjoyed reading the posts about whether and to what extent legal education needs clinical education. The cost-benefit analysis takes into account the cost per student credit hour and rightly notes that clinical education's cost in that regard is much higher given the restrictions on the number of students that can be supervised at one time. That's a legitimate point on the cost side. On the benefit side the point is well made that firms should prefer practice ready graduates, and that those graduates should be more employable, or in a solo setting more self-sufficient.
I would like to see more discussion of the value of clinical education to clients. Is it important to clients that graduates be practice ready? It would seem so. Assuming that is the case, how can the legal academy best accomplish that goal with limited resources. Doctrinal courses, skills training and externships all have a role to play in legal education. As a clinician, I do not want clinical students who have no doctrinal training, no grounding in procedure or ethics. That is why our clinical courses require more prerequisites than any other courses. It is preferable that the students have skills training as a foundation for, but not a substitute for clinical practice. Clinical education and the other curricular categories are not mutually exclusive. Each builds on the other. Externships and clerkships have a role to play, but experiential learning in each context is more ministerial because the students are not in the role of counsel.
The analogy of clinical legal education to practicums in other areas of professional education is apt. None of us would choose a surgeon or a aviator whose training was limited to simulation, no matter how well these professional counterparts scored on the written exams or how well they performed in the simulations. We know intuitively that there is a difference. Statistically speaking, most graduates enter private practice in the small or solo settings and need practice readiness. MacCrate's findings and recommendations are still relevant.
Expecting law firms to bear the costs of completing the education of our graduates is problematic. The firms by definition have chosen as their mission the provision of legal services over the education of law students. The firm's need for lawyers is driven by excess demand. Thus, the firms are not hiring because they have discovered they have the time and talent to educate. They are hiring because they need new attorneys to take responsibility for clients and files. The economics of practice require that the firms turn new clients into permanent clients and turn files into revenue. And, given the large number of solo practitioners it is not feasible to expect the private bar to complete the legal education of our graduates. This shortcoming was the impetus for MacCrate.
One final point about the cost side of cost-benefit. There is a societal cost to licensing graduates who are not practice ready. The legal academy externalizes that cost to new lawyers and their clients when bad things happen to a recent graduate who is unprepared to practice. This is a heavy cost for new lawyers who have invested years of their lives and huge sums of money. The cost may be greatest for the hapless client who was led to believe that a license meant practice readiness. And, there is a cost to the profession. Our credibility and our public image as a profession is tarnished. I would agree that it's a choice that the profession gets to make, but I would ask that we devote our institutional energy and talent to finding the resources that we need rather than externalizing the costs to those least able to bear it. If nothing else, we will have a curricular goal that is pedagogically defensible. And, we will have a reason to feel good about ourselves and our profession.
Posted by: Tim Tarvin | Jul 11, 2013 4:23:47 PM
I can begin to see (but still question) why a clinic alum might think of themselves as practice ready in the narrow area they focused on in the clinic, but how in the world does that experience make them practice ready in a broader sense? I just do not see skills as transferable outside a really narrow practice overlap, and even then, if you are not solo and are being supervised by another attorney, different attorneys (even within the same firm) have very different expectations. I remember without changing practice groups at all having to be practically retrained to work for partner "Jill" because she was so different from partner "Jack."
Posted by: Matlock | Jul 11, 2013 5:08:13 PM
Interesting thread. Two quick thoughts:
1) Several responses argued that we should be less focused on cost and more focused on ensuring that we are delivering the best possible education. The problem with this, I think, is that our students must pay for whatever education we provide them. Less focus on cost means higher cost, and we pass on higher costs to our students: In the end, a higher cost means that our students must pay us more for their degrees. Paying us more for their degrees means more money for us, but it also means an even greater debt burden for our students.
2) In response to Jeff Pokorak: Jeff, I gather you are being sarcastic in your proposed cost-cutting measures. But I don't see your suggestions as a joke. I think we should be looking at the kinds of cost-cutting measures you mention; nothing should be off the table.
Posted by: Orin Kerr | Jul 11, 2013 11:53:04 PM
What a great way to start the day...reading just one day of yesterday's discussion beginning with Tamar's post. One quick comment: an externship is sometimes, but not often, a clinical experience (while we do not have perfect agreement about what a clinic is, I think we can all agree that a clinic is more than simple legal experience). A "clinical externship" can be a cost effective way to teach substance, application/skills and professional formation and a distinction needs to be made. That is not to undervalue paid and volunteer legal work, but summer jobs and internal and external clinics are not the same thing.
Posted by: Liz Ryan Cole | Jul 12, 2013 6:36:36 AM
LRC: So an externship counts toward the 15 hours only if it supervised by a (paid) clinical faculty member? No wonder Kate Kruse included "externships" in the CLEA press release. A rose may be a rose by any other name, but evidently this doesn't hold true of externships! How predictable...
Posted by: grouch | Jul 12, 2013 6:10:26 PM
I just wanted to thank everyone who added their voices to this dialogue. No matter where on the spectrum we fall, it's clear that those in academia as well as those practicing on the front lines care a great deal about the future of the legal profession -- how best to prepare the next generation, how to ensure that the training they receive is effective, and how to prevent them from sustaining unmanageable debt before earning a single paycheck. There are no easy answers, but it gives me hope that so many of us are willing to put ourselves out there and try to come up with solutions.
Enjoy the weekend,
Posted by: Tamar Birckhead | Jul 13, 2013 9:36:35 AM
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