Counterpoint On Proposed New ABA Rules On Skills Education

Brian Leiter has posted a critique of proposed new ABA rules that would mandate that a law school require every student to complete 15 credits of skills education.  While Brian critiqued the proposal on substance, he's posted comments of others as well.  These comments go astray, in my opinion.  

The specific terms of the proposal would be that a school must require:

 One or more experiential course(s) totaling at least fifteen credit hours. An experiential course or courses must be: (i) simulation course(s); or (ii) clinical course(s); or (iii) field placement(s). To satisfy this requirement, a course must be primarily experiential in nature and must: (i) integrate doctrine, theory, skills, and legal ethics and engage students in performance of one or more of the professional skills identified in Standard 302; (ii) develop the concepts underlying the professional skills being taught; (iii) provide multiple opportunities for performance; and (iv) provide opportunities for self-evaluation.

This is a variant of an existing proposal, out for comment, that would require 6 credits of this sort - rather than the single course required under current rules.

Whatever one might think of this new proposal, and that goes to fundamental questions about what a law school should be teaching, the two common critiques - that it is too expensive and that it is designed to benefit a particular interest group (clinical faculty) - are off target.

Critics concerned about cost have it backwards.  While this proposal could increase a law school's costs, if it chose to implement it via live-client clinics, it could also substantially decrease the school's costs if it used externships to deliver the credits.  (There are some faculty costs to proper supervision of externships, but they are  low, vis-a-vis the total number of credits.)  Put it another way: schools looking to slice the cost of delivering legal education should love this proposal.

For the same reason, critics worried that this is just a maneuver to protect clinical faculty jobs have it wrong.  This could increase the number of clinical positions, but there is nothing in the rule that suggests it would.  Indeed, the current economic climate suggests it will not.  On the other hand, in addition to implementing the liberal use of externships, schools may lean on "podium" faculty to incorporate simulations in their classes.  These faculty may find this proposal unappealing because simulations take more time to teach - and thus alter the proportion of time a professor may need to dedicate to teaching. 

This proposal reflects the view of many clinical faculty, and many other law professors, who see  practical skills training as core to the law school project. This proposal should also be good news for anyone who wants the current 3 year curriculum to survive.  

There are criticisms to be made.  Perhaps many students don't want the law degree for the purpose of legal practice.  Perhaps students are best served by substantial freedom in course selection.  Perhaps one or more of these approaches to skills training don't add value.  Perhaps we should slice law school to two years, and outsource skills training entirely to employers.  Or perhaps, if this proposal is adopted and students use 15 credits on skills classes, certain boutique c0urses will no longer fill and current faculty will be forced into teaching different classes.

But whatever one thinks of this proposal, criticisms targeted at the faculty proposing the change - rather than the change itself - are, in my view,  misplaced. 

I will moderate comments.

Comments

[Scott Fruehwald]

One of the problems with the comments to Leiter's post is that he originally misstated the proposal as applying only to clinics. As you have correctly stated, clinics are just one option along with externships and simulation courses.

I agree with your comments. I would add that I believe that the ABA should adopt the expanded proposal because students need the practical experience provided by the proposal. Education scholarship has demonstrated that students learn more and they can manipulate knowledge better when they apply that knowledge.

[Former Law Review Editor]

"Many students" do not go to law school because they "don't want the degree for the purpose of legal practice." That's like saying "many dental students don't want the degree for the purpose of dental practice." To the extent that there are any such individuals, the number of such students likely can be counted on one hand.

Also, podium faculty lack both the teaching pedagogical background and the substantive skills to teach simulations.

The skills requirement is meant to be an educational earthquake as the current system is expensive and bad at achieving its purported mission: training and preparing nonlawyers to be lawyers.

[Matt Bodie]

Just curious, Former Law Review Editor -- who are you going to have teach simulations?

[xiata]

I don't see why "podium faculty" wouldn't be able to be repurposed to teach more practical skills. They can learn how to do that by taking teaching classes or something similar.

However, if the ABA doesn't do anything meaningful on the two biggest problems: excessive law school cost and terrible job market for lawyers (which is exacerbated by massive debts), they are missing the forest for the trees.

It doesn't matter how well-trained in "practical" skills law graduates are from law school if they owe Uncle Sam $1000+ monthly payments for 10 years or if they cannot get a job practicing the profession that they joined.

[Former Law Review Editor]

Matt,

I'd like to see adjuncts teach simulations, or podium profs with some training in educational instruction. It's very common in medical education for the teaching faculty to be practitioners. Simulation instructors exist, and on the whole, they are excellent.

The National Institute for Trial Advocacy (NITA) is excellent and utilized by many practitioners for CLEs. Jerry Spence runs a Trial Lawyers University in Wyoming, which I've heard is also outstanding.

Assuming a nonlitigation simulation, there are CLEs and/or practitioners who could come in to provide such skills. For all the talk of costs (and I don't mean to be dismissive of it) the practicing bar manages to run such courses for lawyers for relatively low costs compared to the numbers being thrown about here. (17 times the cost of a socratic lecture, my goodness!). These courses exist despite law school, and the practicing bar embraces them.

I believe simulations would be helpful, but if and only if they are taught by those with the skills to teach them. Many podium profs are good at the socratic method and talented in the scholarship in their fields. They are not, however, traditional educators and few of them have the background to run a simulation that will teach the skills that are the goal of this proposal.

Hope that answers your question, Matt.

[Ken Chestek]

I think there are more law students who don't intend to practice law than Former Law Review Editor thinks, but I would agree that such students are a minority. However, the solution to that is simple: law schools should be free to offer some degree short of the JD that teaches basic legal analysis to satisfy those students. That degree could b delivered in less than three years. But students who wish to sit for the bar exam and practice law in the more traditional sense would still be required to take the three-year program with the 15-hour (or some lesser number) of required skills courses.

[Matt Bodie]

Just to follow up, when you say "podium profs with some training in educational instruction," what kind of educational instruction were you thinking of? I ask because I think there are two very different sets of skills you seem to be looking for: (1) some connection to/familiarity with the practice of a particular area of law, and (2) some pedagogical instruction, such as an advanced Ed. degree. I think a lot of existing "podium" profs have (1), although they may not have the deep level of experience and/or current connection to practice that you are looking for. But I don't really know any type of professor -- doctrinal, clinical, LRW, adjunct, or otherwise -- who has (2), at least as a formal requirement. So if you want (2), I'd be interested in what kind of (2) you are looking for. A masters in education?

I don't think CLE courses are really the right grounds for comparison/emulation here. Aren't they generally (1) noninteractive and (2) primarily designed to fill in substantive gaps for specialized practitioners? The NITA programs may be an exception, but NITA seems to mirror a law-school approach (for classes like Trial Ad) rather than deviate from it. But again, I could be missing something.

[Orin Kerr]

Dan writes: "While this proposal could increase a law school's costs, if it chose to implement it via live-client clinics, it could also substantially decrease the school's costs if it used externships to deliver the credits."

I would think that some schools are better situated to provide externships for students than are others; a school that is far from a legal market presumably would have trouble with this. Also, can you say more about the cost issue? It's not obvious to me that such a requirement would "substantially decrease" a school's costs. If externships are very cheap and are available, presumably schools tend to have them now; I'm not sure that mandating them would make a difference.

[Former Law Review Editor]

Matt,

With respect to simulations, I'd expect either excellent practical knowledge in the discipline (e.g., tort litigation, corporations, wills and estates) and some training in instructional and learning methods -- not necessarily from a university. (An adjunct who's wildly popular at CLEs and has been training the local bar for 5+ years should suffice). I agree with you that there are very, very few who have any training in this regard, and an M.Ed is obviously not necessary. But there is a science to educational methods, which is why high school teachers are expected to know both mathematics and education. Criticism of the socratic method or of law school naval gazing come from both a lack of practical knowledge and the inability to convey knowledge to others. It's a shame that absent in professional schools.

Not all CLE courses obviously. NITA and a few others have interactive workshops, and that's what I'm talking about. NITA, in my experience, does not mirror a law school approach, and I took my law school's trial ad course. There are symposiums on drafting. There are deposition workshops. There are "fundamentals of commercial real estate" classes. These are what I'm talking about.

Some podium profs may be competent to so teach. But I envision a train wreck of a torts prof trying to convey deposition technique to students. Or a conlaw teacher trying to simulate jury selection. Or of the property prof trying to tell students how to close a house without a trip to the clerk's office.

[anon]

It's pretty simple, isn't it? Faculty should be proficient researchers and experienced in the field. This obvious solution always gets brushed aside because those having the conversation -- current law faculty -- lack the requisite expertise in the field and thus only serve to lose from advancing that proposal. While law school isn't truly a trade school, imagine if another professional school were taught by faculty without meaningful experience in the field.

[MacK]

The problem with law schools skills training are multifarious. First, it is a fair point to ask who is going to impart this skills training - the existing law school academics? As is frequently pointed out, most lack any substantial practical experience - they don't have the skills they are supposed to teach.

Second, the skills training issue is ultimately being driven by the cost of law school and the overproduction of JDs. The cost of law school drives the skill issue because it drives new lawyer salaries, especially in BigLaw, which in turn raises the thorny question of billable rates. In effect, the problem is that if a new associate is going to be paid $100,000+, he/she needs to be billable at rates over $200 per hour - with no time write-downs. At salary levels of $160,000+ law firms (and clients) expect instant competence - a first year associate working at the level of a three-to-five year associate. The over production of JDs creates a related problem - some of them are not going to get law firm jobs, where experienced older associates and partners serve as their "training wheels." Instead they may have to go out and "hang a shingle," representing the unfortunate public with zero experience.

So what is now being proposed is more skills and practice training. The problem is that 15 semester hours of skills training is really not a lot - less in fact than a new lawyer should get in a month or two of actual legal practice, or might pick up clerking when in law school (if those jobs were still easily available.) The harsh reality is that the skills issue would go away if there were enough jobs for new law graduates and their debt levels did not mean that they had income requirements so disproportionate to their value. In short, the skills debate is an evasion of the basic issue - law schools are graduating too many JDs and are too expensive.

To solve the skills problem start by halving the number of law graduates per year and halving the real tuition.

[ML]

So does this mean five clinic/simulation/externship courses instead of one or two?

[BoredJD]

"Perhaps many students don't want the law degree for the purpose of legal practice."

Then there would seem to be little point to the requirement that all law students complete credits in professional responsibility.

I have objections to this on cost, but on the idea that a simulation class on drafting, negotiation, deals, briefcraft, or trial practice can't provide substantial benefits to students who have no desire to practice law takes an extremely narrow view of the skills developed in those classes.

[Kristen]

It's not just the ABA. California is poised to adopt a 15 unit competency/skills requirement for admission. I am curious how people think schools will adapt (not what should they do - but what are they likely to do)?

[Larry Rosenthal]

As Professor Filler's post indicates, the cheapest way to implement this proposal is to increase reliance on externships, As law schools face mounting cost pressure, this is the most likely result of this proposal. For just this reason, it is far from clear that a this proposal will enhance practice preparation.

As I indicated in another comment to a recent post on this blog, in many ways the externship model represents a return apprenticeship model of legal education. It is worth remembering, however, why the apprenticeship model fell into disrepute. There is a fundamental conflict between the interests of master and apprentice -- the apprentice has an incentive to maximize the value of the training s/he receives, but the master has an incentive to minimize the resources invested in training and maximize the amount of low or unpaid labor that the apprentice performs that inures to the benefit of the master, regardless of its value in terms of training. This is among the reasons why the apprentice system failed to effectively educate most trainee-lawyers, and was bested by Langdell's academic model. Today, similar concerns about the kind of work assigned to externs are often warranted. I have often observed, first in practice and later in the academy, that many externs are poorly supervised receive work and supervision of highly limited value in terms of enhancing employability. Interestingly, NALP's "After the JD" study indicates that recent law school graduates find externships of less utility to their success in practice than paid employment during law school and clinical courses. Moreover, because law schools facing cost pressure have an incentive to minimize the resources devoted to supervising externs, there is ample reason to doubt that supervision will guarantee the value of externship training.

I am all for incorporating more experiential learning into legal education (as it happens I am designing a simulation-based course at present; these courses are going to become part of the required curriculum at my school in the second year), but I think there is ample reason to be wary of an externships.

Larry Rosenthal
Chapman University

[Matt Bodie]

Orin: Mandating 15 credit hours does not mandate how a school provides the opportunities to take those hours. So students might end up taking a substantially higher number of externships in order to meed the 15-credit requirement. Then doctrinal course go down in enrollment, and that's how the school saves money (in the longer term).

[No, breh.]

"Critics concerned about cost have it backwards. While this proposal could increase a law school's costs, if it chose to implement it via live-client clinics, it could also substantially decrease the school's costs if it used externships to deliver the credits. (There are some faculty costs to proper supervision of externships, but they are low, vis-a-vis the total number of credits.) Put it another way: schools looking to slice the cost of delivering legal education should love this proposal."

Dan, are you suggesting that schools who adopt this proposal would not charge full price for the externship credits?

I can't, for the life of me, imagine that a substantial number of schools would pass on the cost savings to students. The schools I am already familiar with certainly do not do so with respect to externships, and given the apparent budgetary difficulties many law schools are facing, I would be hard pressed to think that many schools would suddenly change the way they do business.

In any case, externships are no panacea: (a) you'd still need to have a sufficient number of available externship positions for students who wanted to satisfy the requirement with one, (b) compelling students to complete an externship would make it inherently more difficult to find one, (c) there is no way to know how many of these externships are actually accomplishing anything pedagogically, and (d) additional flooding of the legal market and displacement of recent graduates may result.

By the by, 15 credit hours is a TON -- essentially one full semester externing -- especially for those who have no desire to complete an externship in the first place.

I can't believe it, but I think I'm actually agreeing with Leiter on this one.

[MacK]

No breh:

It is worse than that. What do they mean by an externship - that a law from or legal department is supposed to take in a person for 11-12 weeks (a semester) for 15 hours or so a week - and give them meaningful work experience. But what is in it for the externship host? An inexperienced law student who will be in the office for a few short weeks - who if they do the sort of things that might be useful, for example learning about a matter - quite likely will be gone well before the matter is over? Someone who will shadow a lawyer, asking questions?

A law clerk will work 20 hours a week for a year - that is useful and they will get valuable experience (that is long enough to get in depth knowledge of a matter, or to learn how to draft routine motions.) A visitor for 2½ months? Part-time? Really?

[Matt Bodie]

Hey breh!

Dan said: "schools looking to slice the cost of delivering legal education should love this proposal." Where did he say that those cost-savings would be passed along? I think Dan is presenting Holmes's "bad man" version of the new requirements. As I've said a few times, even cutting law school down to two years doesn't mean that students will see a cost savings. You need to address the demand side to see prices getting cut. And I do think that's happening -- both overtly (with tuition freezes or cuts) and covertly (with a lot more merit scholarship $$$ in the system).

[ATLprof]

1. MacK, it is worse than that. Most "full-time" externships where a student receives 12 hours of credit are full time - i.e. 40 hours a week for the length of a semester. It is not a direct swap of class time for externship work time.

Additionally, if such externships became a regular thing required of law students, why would a law firm maintain summer clerkships? THey can just have those students do externships (and instead of being paid by the law firm, the students pay the law school). I don't know that summer law clerk programs are all that healthy in the current environment, but this would seem to damage it further.

2. Former Law Review Editor, the primary problem I see with getting adjuncts to teach simulation courses is that adjuncts do not have the time to do it well, generally speaking. Unless the class is very small (just a few students) or there is no real feedback beyond brief oral comments during class, it will be difficult to find enough adjuncts who have time to do this sort of thing. Adjuncts generally teach very specialized subjects through lecture and war stories - they serve a useful purpose. But they have more than full-time law practices. Teaching really is just a hobby for them.

3. As mentioned above, increasing externships will be difficult for schools not located in major metropolitan areas. There are some schools that serve less populated regions, places where believe it or not, there is often a shortage of lawyers (I know, shocking!). They would have great difficulty increasing externships. They would have to resort to students either doing them during a semester away from the school or during the summer, which would require both summers to reach 15 credit hours. I'm not saying that is necessarily a reason not to mandate 15 hours; I'm just pointing out that it would present real issues.

4. It is not just clinics that are more expensive. Simulation courses cost more than other courses because they have to be much smaller than other classes, which in turn means you need a lot more professors (of whatever type). Again, I'm not saying that this should axe the 15 hour proposal. I am just pointing out that we are finally starting to see downward pressure on law school tuition. We need to be mindful of setting up additional roadblocks to university and law school boards responding to that pressure.

5. I am always bemused to see comments about professors not knowing how to practice. There are schools that have for some time stressed having professors with large amounts of practice experience, law schools with average professorial practice experience in double digits of years. There are schools who have made these types of "experiential" courses mandatory and at least one that I know of that has had 15 hours of required credit of this type going back more than a decade.

You know what? Prospective students have not cared. Legal employers have not cared. Period.

And now, law school graduates are crying out for more skills training in law school. Well, why didn't you go to a school with more skills training?

Firms are crying out for more skills training. Well, why aren't you interested in hiring from schools that already provide this type of skills training?

The answer of course is that both have had a slavish devotion to rankings.

I'm not really bringing this up to blame either of those parties. I bring it up to make that point that law schools have done what they have done, become who they are BECAUSE of what law firms and prospective students (and alumni) have demanded. Law firms haven't demanded skills training; they've demanded better rankings (by way of their hiring practices). Prospective students haven't demanded skills training; they have demanded better job prospects produced by higher rankings.

Everyone keeps saying that law schools have not been market responsive. THAT IS PURE CRAP. Law schools have done exactly what the market has demanded of them.

Now, the market is screwed up. And we should be trying to fix things. But blaming law schools for doing what the market demanded of them is wrong, and even if it is not "wrong", let's at least acknowledge why it was done.