Increasing Experiential Education is Not a Remedy for the Broken Legal Services System – Thoughts from the U.K.

The lack of available legal representation for low income persons is a persistent problem, and not only in the U.S. Cuts to legal services programs have been deep in England and Wales, where access to civil legal aid has fallen by more than half.

In a recent post, a Solicitor Tutor at Northumbria University, Newcastle, lauds U.K. law schools for increasing clinical opportunities for students, but cautions against using them to attempt to fill the increased need for pro bono legal services. Her message is both important and familiar:

But what we mustn’t do is look upon law schools as a replacement for legal aid, or a sticking plaster for a somewhat bruised legal system.

We cannot forget that this is clinical legal education, designed to give law students the opportunity to hone their practical legal skills, to experience what it is like to sit opposite a real person with a real issue and help them solve a problem. They need to understand how the cases and legislation they learn about in the classroom truly affect individuals and organisations – and to reflect meaningfully on their personal strengths and weaknesses.

Thankfully, we may have moved beyond this corrective conversation in the U.S., where the ABA requires 6 credits of experiential education for all students graduating from accredited law schools, starting very soon. The ABA mandate is intended to improve educational outcomes, not to fill the void for legal services. Experiential courses are explicitly required to integrate and develop legal doctrine, skills, and values through faculty-supervised performances and self-assessments (ABA Standard 303(a)(3)). In contrast, pro bono opportunities “need not be structured to accomplish any of the outcomes required by Standard 302″ (Interpretation 303-3). While there is often a wonderful overlap between clinical courses/field placements and public service, it is nice to see the distinction between them articulated by the ABA.

Preparing Students for the Multistate Bar Exam

The trend has been fewer applications for law school and smaller graduating classes. Now we see a drop in bar exam performance. The ABA Journal reports that, according to Above the Law, “Nationwide, scores on the Multistate Bar Exam are nearly three points lower than the national mean for the July 2013 exam, the largest year-to-year drop since the start of the test.” Why? The National Conference of Bar Examiners points to “less able” test takers to explain the drop in scores on the Multistate Bar Exam. What does that mean?

Lawyers don’t need multiple choice test-taking skills to be effective in their work, but law graduates must master this form of test-taking to gain a professional license. So law schools, and their curriculum committees, must consider the extent to which they will shoulder the responsibility for preparing students for the bar exam – including improving their ability to succeed on multiple choice tests. Even before this marked decline in scores, many schools had already changed their bar preparation efforts from subtle to overt.

But at a time when law schools are focusing on teaching integrated doctrine, skills, and values, an already ambitious undertaking, is it backtracking to reconsider the multiple choice test – like LSAT prep all over again – instead of progressively developing knowledge and true professional competence? Or is it appropriate to simultaneously develop the skills students need to pass the (often criticized) bar exam?


Last week Jeffrey Toobin joined the growing chorus decrying the state of legal education in his article in the New Yorker entitled “The Legal One Percent”. One might expect this nationally renowned legal expert, CNN commentator and author of numerous books on legal issues, to write a thoughtful and inspiring piece on the changes facing legal education and the legal market in general. Instead, what Toobin gives us is an intellectually lazy finger-wagging at law schools, boldly asserting that our “system of professional education” is “directly contributing to inequality.”
This inequality, according to Toobin, is related solely to income. He notes that lawyers working “at the top of the pyramid” at white shoe firms like, for example, Cravath, Swaine, and Moore (his example, not mine) are earning “profits per partner in the multimillions.”
Toobin goes on to characterize “recent law school graduates” as those “at the bottom of the pyramid” and cites the Atlantic for the statistic that “­[m]ore than 180 of the 200 US law schools are unable to find jobs for more than 80% of their graduates.”
I have no quibble with Toobin’s data or his freedom to express his opinion about the state of legal education. I do find it ironic that he took the time to write what could have been a thoughtful piece on the subject in such a time of change, and then simply pointed out that law firm partners make more than young lawyers and that new lawyers are finding it hard to land jobs in the softest economy this nation has seen in a generation.
More troubling, though, is his assertion that law schools are “exploiting” their applicants; and his utter failure to address the massive dearth of access to legal assistance faced by this nation’s citizens–not its law graduates–at the “bottom of the pyramid.”
Finally, Toobin, makes the assertion that “[t]he vast middle of the legal academy—at the big state schools, for instance—is doing only a little better than the schools at the bottom.” He seems to be referring to debt load of graduates, but fails to contextualize the assertion at all. And what of the actual justice-serving work that we in Toobin’s so-called vast middle of the legal academy are engaged in? What of the successful petition to the Inter-American Commission on Human Rights by the University of Miami’s human rights clinic faculty and students on a domestic violence case, yielding a globally landmark decision on police practices in domestic violence cases? What of the MacArthur Foundation grant awarded to Professor Sarah Deer of William Mitchell College of Law to continue her legal work empowering tribal nations to protect their citizens from violence?
Perhaps Toobin’s article title includes the term One Percent because he focused on them, rather than the Occupiers.

LegalED helps free classroom time for experiential learning

Regular readers of Best Practices for Legal Education Blog know about Michele Pistone’s LegalED. LegalED shares short videos of leading law professors discussing various topics. (Subject matter areas include administrative law, constitutional law, copyright, evidence, immigration law, legal ethics, trial advocacy, and more). Videos can be viewed by students outside of class, freeing up class time for hands-on, problem-based learning and assessment.

If you have not already joined LegalED, you can join now by filling out this short form.

An interview with Michele Pistone on flipping the law school classroom is currently featured in Scholastica Blog.

So you want to be a law professor

So you want to be a law professor. If you do a quick Internet search (as I did today), you will likely find the following advice:

  • The most important factors in determining your success in the market for a law professor position are: (1) the law school you attended (top 5 is ideal; top 20 is workable; a school ranked below that will make your search difficult); (2) law review membership, (3) federal clerkship or clerkships; (3) having one or more published law review articles after graduation; (4) a couple of years of practice experience; and (5) excellent recommendations from law faculty.
  • Adjunct teaching experience is not helpful to your candidacy.
  • Generally, practice experience is not helpful to your candidacy.
  • If you want to be a clinician, practice experience is likely important and a record of publication is likely less important. In one article, a professor explained that in his time on appointments committees he found that most candidates who had extensive practice experience were more interested in teaching than scholarship. He suggested, “Such people often are better directed toward clinical work than regular tenure-track positions.”

In the new era of legal education, this seems like a faulty framework for law school hiring decisions. Maybe this is a non-issue. After all, with declining applications and enrollments, many law schools are not hiring.

But for schools that are hiring, isn’t it irresponsible to continue hiring based on the old criteria? Today’s law students expect to be prepared for practice. The old model – a single exam at the end of a semester of case law and the Socratic method – does not cut it. It never adequately prepared people for practice. But in the old days (when I went to the law school), we got our experiential learning after graduation.

Today, that hands-on learning needs to start in the law school classroom. Preparing students for practice means providing context. It means putting students in the role of lawyer so that they can begin to understand how lawyers use the law to help solve clients’ problems in practice. It means providing students feedback during the semester.

This can, and should, be part of legal education for all three years of law school. It need not be reserved for clinics and externships. This education is something that all law professors should be able to provide our students.

Who should law schools hire to train the next generation of lawyers? Does it make any sense that people (1) interested in teaching; (2) with practice experience; and/or (3) who did not attend a top law school should be viewed as less qualified for law professor positions? Why is a clinical teaching position not a “regular tenure-track position” at most law schools? Aren’t people with a passion for teaching and/or with significant practice experience just as capable as the “traditional” applicants to produce meaningful scholarship?

Some law schools have followed a different hiring model for many years and others are changing. I am sure there are others that believe there is a work-around. They will continue with business as usual, but lean heavily on clinicians in non-tenure track positions to provide the experiential learning students and employers demand. But maybe it’s time to start thinking about the advantages of a different approach.

The “Dark Side” of Being a Lawyer

Bibliography on Education Reform, courtesy of Patricia Salkin

Fall is here and in addition to the start of the academic semester, the NYSBA Committee on Legal Education and Admission to the Bar is in high gear.  So much has been written about changes in legal education in a short period of time, it can be difficult to keep track of the books, articles, columns, posts, etc. Thanks to Touro Law librarian Laura Ross, a working bibliography on legal education reform has now been posted to SSRN for all to access. This is an ongoing work-in-progress, and Laura welcomes emails with suggestions for additions to the list.  Entries in the bibliography provide great starting points for discussion among faculty and law school constituents about the present but more important, the future, for individual law schools.  We hope you will use this to inform your teaching, scholarship and service to the school and community moving forward.  Those of us fortunate to be a part of the Academy have a wonderful opportunity at this moment in time to respond to a rapidly changing legal profession by making deliberate and informed reforms in the way we educate the next generation of lawyers.


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