When I first started as a law school dean in 2001, I heard a counterpart at a top school advise new deans to stay out of the business of curriculum reform. Our legacies, she said, would be based on the money we raise and the faculty we hire. Curriculum reform efforts would take a long time and lots of energy, and in the end the faculty would probably just opt to tinker with the first year, which works the best anyway. At the time, that was probably pretty good advice.
Much has changed since then. Law faculties around the country are involved in modernizing and improving legal education. The last decade may have been the most fertile period for innovation in the history of American legal education. Catherine Carpenter's terrific survey provides rich detail of this trend. More students than ever are now benefitting from experiential learning, whether clinics, simulations, externships or other models. Hands-on learning in the transactional area, virtually nonexistent a generation ago, is growing rapidly. There are new consortiums like Educating Tomorrow's Lawyers, incubator programs for students opening their own practices and many other innovations. My friend Bill Henderson is developing a Blueprint For Change that has great potential. In sum, legal education is much better than a generation ago in what and how students learn.
Of course, legal education still does not approach medical education in fully preparing students for practice. This is the result of our unique history (for an excellent look at critiques of legal education over time, see this great article by Benjamin Spencer) and the massive governmental involvement in and funding of the health care system. But the trend in experiential learning in law schools has been clearly and strongly upward.
In my previous post, I acknowleged one of the ways that rankings and competitveness pressures affects our behavior. I think that the emphasis on experiential learning opportunities reflects something different: our commitment to doing what is right for our students even if the market does not reward us for it. Nothing in the U.S. News rankings really attempts to measure educational quality. Employers may say they expect new lawyers to being able to "hit the ground running," but I don't see them really constructing their hiring practices on that basis. There is some movement towards competency based hiring, but many employers continue to rely very heavily on school status and grades in screening applicants. I know that Bill Henderson is trying to demonstrate that there is a real competitive advantage in being an educational leader. I hope he is right, but it is speculative at this point.
My biggest concern is that the momentum in experiential learning could be lost as law schools enter an era of austerity. Good experiential learning programs cost more than traditional law school classes, because they are labor-intensive. In recent years, schools have been able to provide more of these opportunities, even as many of our traditional faculty members taught less and researched more, by hiring more clinical, visiting and adjunct faculty and by using nonfaculty administrators to assist in these efforts. With smaller incoming classes, most schools will have to make budget cuts, and they will not generally come from the ranks of tenured doctrinal faculty. We will have to work hard and develop creative partnerships to keep things moving in the right direction.
The ABA Section of Legal Education can play an important role in ensuring that this happens. The Standards Review Committee is considering two proposals that should be adopted. One would require that every student have at least one experiential course: either a live client clinic, a simulation based course, or an externship. My school and several others have adopted this type of requirement. Imposing it on all law schools would be a manageable burden that would be good for our students. The other is a proposal to require schools to engage in rigorous assessment of student learning outcomes. Schools would be required to: 1) identify the learning outcomes they intend their students to achieve; 2) align their curriculums with those goals; 3) use multiple formative assessments throughout the curriculum (although not necessarily in each course); and 4) periodically review their goals and progress towards reaching them. This kind of thing can be heavy-handed or overly bureaucratic. But I think the current proposal strikes a good balance.
Unfortunately, the Standards Review Committee is not seriously considering other possibilities to encourage better student learning. An old debate has recently reemerged about whether law school should be two years instead of three. I don't expect the ABA to take up that idea now. But they should be considering whether to lift restrictions on nonclassroom learning. The third year of law school, as long as it continues to be required, should be a laboratory for experimentation. The Standards should not limit the use of adequately supervised field placements, as they do now. More generally, the central focus of the Section should be to remove all impediments to reasonable experimentation from the Standards. We owe it to our students.