The ABA Taskforce on the Future of Legal Education today posted a thirty-four page “WORKING PAPER” in preparation for its next public hearing and meeting on August 10th in San Francisco see schedule. (Note: all blue font below is my “emphasis added” in this blog post and not found in the original document). After briefly summarizing challenges and obstacles, the Working Paper states,
The Task Force has resolved these challenges by structuring the Working Paper as a field manual for people of good faith who wish to improve legal education as a public and private good.
Early on, the drafters alert the reader to Section VII (“Themes Addressed to All Parties”) and call that section “the heart of the field manual.” In the Overview, the drafters identify the following “Key themes:”
- “need for a systematic (rather than tactical) approach to the deficiencies of law school financing and pricing;”
- “greater heterogeneity in law schools and in programs of legal education;”
- “an increased focus on the delivery of value by law schools;”
- “a focus on the development of competences (sic) in graduates of legal education programs;”
- “the profound importance of cultural change, particularly on the part of law faculty;”
- “the need for changes in the regulation of legal services to support key changes in legal education;” and
- “the need for institutionalization of the process of assessment and improvement in legal education.”
In Section II, the Taskforce identifies and addresses a tension in legal education (which IMHO is too often overlooked — at great risk to American law and society). The drafters refer to it as “The Fundamental Tension.” On the one hand, there is societal interest in the training of lawyers as a “public good” and the “centrality of lawyers in the effective functioning of ordered society.” Requiring ethical training or encouraging faculty scholarship may be an important ”public benefit.” On the other hand, American legal education is also a “private good,” providing trained lawyers “with skills, knowledge and credentials which will enable them to earn a livelihood.” This private good aspect subjects legal education to consumer preferences and market forces. The Taskforce wisely acknowledges that any “credible” set of recommendations will have to “carefully calibrate” the public and private concerns.
In Sections III to VI, the Report outlines guiding principles, intelligently discusses the forces and factors prompting need for action and aptly details what actions or initiatives can be realistically undertaken to effect change. The Taskforce comments that it structured its proposed plan to:
(a) encourage and facilitate appropriate action by each actor in the legal education system; and
(b) to the extent possible coordinate those actions to achieve large-scale improvement.
In Section VII, the Working Paper lays out and develops key themes mentioned above. In the eighth (VIII) and final section of the Working Paper, the drafters set out seven sets of specific recommendations addressed to particular “groups or actors in the system of legal education.” Some of those recommendations call for modification or elimination of current ABA standards which according to the drafters “Directly or Indirectly Raise the Cost of Delivering a J.D. Education Without Contributing Commensurately to the Goal of Ensuring that Law Schools Deliver a Quality Education.” Those include standards pertaining to tenure and security of position, faculty-student ratios, distance learning and adjunct faculty. Others call for revising, eliminating or adding standards to encourage innovation, including for programs of legal education that result in less than a J.D. but which serves public needs for legal services:
Incentives, resources, and encouragement can be powerful supports for innovation, and these can come from many participants in the system (as well as participants outside the legal education system). The ABA Section of Legal Education can support innovation by modifying or eliminating Standards (including those governing variances) that constrain opportunities for experimentation and risk-taking. As noted above, experiments or successful risk-taking by one participant can influenceothers to go down a similar path. In addition, there exists a wealth of knowledge schools can draw, from organization theory and elsewhere,to facilitate their acting in ways that might lead to innovation.
In order to alert readers to the availability of the report as promptly as possible, I have posted immediately and have had only the briefest of opportunities to digest the Working Paper in its entirety. So without addressing any specific recommendations, here are my thoughts as to what the Taskforce and Working Paper got right:
- The Taskforce correctly focuses on the “Fundamental Tension” between public good and private livelihood demands.
- The Taskforce highlights appropriately the critical importance of providing real “value” to student-consumers (and the unfair consequences currently for need-based law students without the highest of LSAT scores).
- The Taskforce underscores effectively the need for permanent institutionalization of ongoing assessment and improvement mechanisms for legal education.
- The Working Paper accurately identifies the need for correction and balance in faculty culture.
- The Working Paper also accurately identifies the need for adjustment in curricular focus on student competencies and skills.
- The Working Paper aptly emphasizes the need for innovation, experimentation and flexibility at this moment in legal education.
Although this “Working Paper” is a good start, the Taskforce still has more issues to include in its deliberations. I think these issues include:
- How to continue to protect academic freedom as part of law schools’ role in aiding the “public good.” The need to properly protect academic freedom is not a mere ”hypothetical” issue as those professors and clinics who have experienced the backlash will tell you. (See also my discussion about it in an article on outcomes in the William Mitchell Law Review.)
- How to reconnect law schools’ “public good” mission with governmental funding priorities; specifically, to revive or replace DOE funding for client-centered education, the elimination of which (20 years ago) has contributed to the current maldistribution of legal services and gaps in access to justice.
- How to manage the risks that accompany deregulation, i.e. the potential for pragmatic market-oriented reforms to establish a de facto two-tiered system, which could exacerbate current inequities in quality of legal services and opportunities for advancement in the profession.