An Open Letter to the American Bar Association Council on Legal Education on Experiential Learning
The Standards Committee embarrassed itself
Although this Substack is mainly devoted to corporate law and governance, it does so from an academic perspective. As such, I will occasionally touch on legal education. Especially when I think there’s a serious national problem.
My attention to the example at bar was drawn by Brian Leiter, who has been keeping an able eye on the shenanigans going on at the ABA Council on Legal Education—the accrediting body for US law schools—with regard to experiential learning. In his latest post, Brian reports that the Council’s Standards Committee has issued a memorandum sending out multiple standards relating to experiential learning for additional Notice and Comment.
The memo roused Brian’s ire:
The contempt for law schools and legal educators in this memo is palpable, given the devastating (and still unanswered) criticisms of the proposal to double experiential credit hours required for graduation. The two small concessions are: (1) the Council now recommends that 3 of the 12 required experiential hours can be earned in the first year of law school; and (2) the curricular changes must be implemented no sooner than 2032-33.
At the outset, let me clear that I broadly support experiential learning. All students should have some experiential training before embarking on their legal career. But I think there are some serious problems with the current proposal.
In this issue of the newsletter, I want to focus on the data on which the Standards Committee relied in formulating its recommendations. The studies on which they rely are in many instances a small sample, out-of-date, or otherwise suspect.
At page 5 of the supporting memorandum, for example, the Committee opines that its “ research reveals agreement among educators that experiential education is the preferred method for teaching a range of skills that are necessary for effective, ethical, and responsible participation in the profession ….” In support of that claim they cite a whopping three articles, all of which deal with higher education in general rather than legal education.
Next they cite a survey that “one survey found that as many as two-thirds of law students do not think law school teaches the skills needed for legal practice.” One wonders whether what law students think is meaningful when they have yet to experience practice. And, in any case, the study is from 2009. There’s been a lot of change in legal education since then.
Ditto their claim that “students also reported that clinics are just as effective or more effective for learning legal ethics than a professional responsibility course.” The only difference is that that study is even older (2008).
The claim that “Students in clinics are slightly less likely to see their 3L year as superfluous” is based on an even older study (2001). Two decade-plus old findings are hardly a firm foundation for doubling the amount of experiential learning that law schools must provide (and for which students must pay).
In the paragraphs that follow, we see cites to studies from 2012, 2015, 2010, 1992(!), 2007.1 In short, it goes on and on.
One would think lawyers would have done a better job of documenting a proposal that will make radical changes to legal education, that will require massive curricular changes, shifts in faculty hiring and/or increased reliance on adjuncts, squeeze out doctrinal courses, and probably increase costs significantly due to the need to teach more small classes.
Brian seems to assume that the Council will ram the proposal through in some form. he suggests some options:
(1) a collective refusal by dozens of law schools to comply with these requirements that will disrupt their programs of legal education without any evidence of their benefit--let's dare the ABA to start stripping accreditation from elite law schools, state flagships, etc. (2) a collective effort to lobby the Education Department to recognize other accreditors of law schools, and perhaps to strip the ABA of its accreditation role entirely given its repeated bad behavior.
Given the Trump administration’s doubts about higher education accreditors in general, an unholy alliance between leaders of legal education and the administration could give the ABA fits.
A sarcastic person might point out that the Committee apparently can offset their reliance on out-of-date data by peering into the future, as footnote 20 cites a study they date as coming from 20212.