Clinical Legal Education and the Future of the Academy

getting practical imageI 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.

This post also appears at PrawfsBlawg where there is a very active discussion in the comment section.  Please check it out.

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About Tamar Birckhead

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