Training, education, and the ABA Working Paper

Here is the ABA Task Force's Working Paper; here is a response from former Cincinnati Dean Joseph Tomain (H/T on the latter: Brian Leiter). Tomain's response is excellent; it captures and beautifully expresses a lot of the inchoate thoughts I had both after my initial read of the report and have had throughout much of this debate. I want to flag and think about a couple of points.

First, Tomain notes that the report repeatedly speaks of law schools "training" lawyers rather than "educating" them (although it also speaks about "legal education"). That seems a meaningful, deliberate word choice that elides a critical distinction that I have not seen discussed but that goes to the heart of much of this conversation. He explains the difference as follows:

I can train a reasonably intelligent eighth-grader to draft a non-compete clause in 10 or 15 minutes.  I cannot, however, educate them about market definition, information asymmetries, or public policies regarding employment in different sectors of the economy.  One might quickly ask: Why would someone who knows how to draft such a clause need to know about economics and market dynamics? The answer is as simple as it is obvious. They need to know the context so that they can critically assess a non-compete clause or draft one in another situation for another client.

A good lawyer needs both education and training. The question is who should provide what and in what order. My late father-in-law spent his career in academic medicine and regularly spoke of doctors who had "trained with" him. In all cases, he was talking about residents or, more likely, post-residency fellows in oncology; he was not talking about med students, people working through the four years of basic medical school. Training, in other words, happened after school--and after education. Which makes sense: One only can be trained to do anything if one first has a basic education as to what that thing is, how it works, and why. And even if some training can and should happen in school (and Tomain notes that clinical and externship opportunities are constantly expanding to provide an introduction to training) it cannot be at the expense of education.

Second, much has been made of the differences between legal and medical education and the purported goal of importing the med-school model into legal education. Tomain shows why that may not work, given the cost and sprawl of residency programs (i.e., training). But let's compare a different professional discipline--social work (thanks to conversations with my wife, who has been in social work education for a decade). Although requirements vary by state, in general, to be a licensed clinical social worker requires: 1) an MSW, a two-year program that includes two semesters of externships, usually following a full year in the classroom, with those externships subject to very specific, enumerated requirements and educational goals; 2) a licensure exam; and 3) two years of post-graduate supervision by a licensed social worker. In other words, there is no expectation that someone will be ready to practice social work on her own the minute she steps out of school, even where, as in social work, experiential learning is a fundamental and required part of the educational process. No one expects "practice-ready social workers." Even if some experiential training becomes a more core part of legal educational--as Tomain, and many other people in legal education, support--law schools are still not going to produce graduates who, on day one, are going to be ready to practice unsupervised and unguided. Because no professional school does.

Third, we also can use social work for comparison on another aspect of the Working Paper--discussion of non-J.D. education and the training/education of non-lawyers to provide certain basic legal services. Social work has both graduate and undergraduate studies; students can earn a bachelor's degree. And at least in some states (Florida is one), a professional only can identify herself as a social worker only if she has a social work degree (BSW or MSW). But these layers of professionals often creates confusion, especially when the media gets hold of a story about a child being hurt, missing, or killed in the child-welfare system. Reports often talk about failures of "social workers," although often the people involved were not licensed, did not have social work degrees, and not as fully trained or educated. I wonder if we will see similar things happen if non-lawyer legal services catches on more broadly.