ABA proposed accreditation rule on increasing experiential learning requirements: An idea whose time has not come

Less than a week after a short post urging the ABA Section on Legal Education to keep up its generally good work and encouraging external folks to avoid major changes that could well throw out the baby with the bathwater, the Section has announced its intention to consider a very bad idea from the Standards Committee. This “very bad idea” is the doubling of the required number of credits of so-called “experiential learning” for students to graduate. While I associate myself squarely with those who value the curricular programs, run mainly through law school clinics, and who encourage students to pursue opportunities for experiential learning during my time in law school, the insistence on this once-size-fits all requirement is a bad idea coming at a bad time. First, the imposition of curricular mandates is to be usually disfavored, and especially disfavored in our current times of turmoil. Such mandates are expensive, clinical programs being especially so, given how the labor-intensive work that typically goes into such courses. Given the pressures faced by legal education and, more to the point, by students embarking on their legal careers with the prospects of high levels of debt to meet the tuition demands of law schools, adding to the costs of legal education seems, in a word, foolish. Second, and as has been pointed out before, there are myriad goals law students have in their curricular choices, not limited to bulking up on courses that give students experience in advising and representing clients in traditional criminal and civil disputes. For example, building skills through cumulative learning in a particular subject matter, given their particular professional goals, might be a priority. So too might be following their plan of fashioning an academic career or some sort of career that is not ordinary legal practice, so maybe a business-centered career for which legal education is a major asset, but one not mainly about client representation. Law student curricular choices are zero-sum choices. Curricular mandates have the effect of limiting student options; they simultaneously have the effect of driving law schools to configure their curriculum to meet the conditions of these mandates, with the effect of limiting the supply of other, non-experiential courses.

One potential area left on the chopping block — anticipating a post I have in the works for later — is the area of law & technology, this made up of courses (some experiential, but not all, and maybe not most). This is a burgeoning area of importance and interest and, to a commendable extent, law schools have been introducing into their curriculum courses and opportunities focusing on AI, machine learning, law-tech as part of modern schemes of research, and, interestingly, the ways in which technology can be deployed to help close the access to justice gap. One fears that the insistence on experiential learning which, as the Section has explicitly said, is focused on client representation in a rather traditional sense, will crowd out these novel courses, leaving law schools to play catch up as developments in AI and other aspects of law-tech are changing the way in which law is practiced.

 

On top of all these potentially bad results of the ABA’s quest to revamp law school curriculum and pedagogy in the direction of experiential learning, there is the spectacularly bad odor which emerges from this top-down micro-management of law school curriculum, this is an era in which innovation and experimentation in higher education is being championed and in which the ABA already has a target on its back from external forces who might swap out this accreditor for another. While I can understand the instinct of this organization to take what it believes is the high road and keep its work relentlessly focused on what it regards as best practices in law school programs, including curriculum, doesn’t sensible politics seek to call for a much more self-disciplined and measured approach? Damn the torpedoes generally works when you have reasonable confidence that you can skillfully elide these torpedoes. But these are big torpedoes, coming right at this accreditation authority, and it seems prudent to collect and keep as many allies from the world of ecosystem, including deans and other higher ed leaders who have a voice and a willingness to use it firmly on their side. This proposal will hardly have this effect. Indeed, it may have the opposite effect of reinforcing the view of law schools will pander to clinicians and others typically associated with the Left when the going gets tough. One doesn’t have to believe, with Prof. Derek Muller in his thoughtful post on X, that this proposal is largely the product of rent-seeking behavior to worry that it will be perceived as such by enemies the ABA and law schools do not want to have. Duh.

Taking this somewhat away from political strategy, there is the added good sense that would come from reshaping the accreditation system from command-and-control to an iterative dialogue with various stakeholders, starting first with the law schools themselves and including others with whom the ABA Section needs and should want to work with on redesigning its accreditation system for this modern world. And let’s be frank, “this modern world” is one in which there is major skepticism about how educational institutions are managing their business and making their choices. We can believe (as I do) that law schools and universities are for the most part well-intentioned; they design and implement their programs with the best interests of the students and of the profession at heart. At least most of us do and at most times. But we should still believe that there is room for improvement in our programs and there is much room for improvement in how we communicate our values, processes, and strategies to an external world that sees and highlights our mistakes and would hold us accountable for certain choices made and roads not taken. In this hothouse of skepticism, it is exactly the wrong time for the ABA Section to be doubling down on controversial, and I would say essentially misguided, curricular mandates.

Take a beat; take some time for considered reflection on the values and purposes of accreditation; and look for creative ways to work with diverse stakeholders. And in this time, give heavy-handed mandates for what some constituencies insist its The Only and Best Way Forward a rest.

(Reprinted from Daniel B. Rodriguez Substack.  You can subscribe for free on that site)