New Article: No Excuses Left for Failing to Reform Legal Education

The June/July 2008 issue of the Ohio Bar Association’s magazine, the Ohio Lawyer, focuses on “Mending Legal Education.”  http://www.scbar.org/public/pdf/mendinglegaled.pdf Two articles in the magaqzine discuss the implications of the Best Practices book and the Carnegie report.  One article was written by Nancy Rogers, President of the Association of American Law Schools. 

The other article points out that law teachers no longer have any excuses for failing to reform legal education.  The article was written by two teachers at Capital University Law School, Professor Michael Distelhorst and Adjunct Professor Jason M. Dolin.   In it, they provide the following insight: 

We have come to believe that all three branches of the profession have a collective ethical obligaton to act to improve legal education. From the perspective of general ethical considerations, our shared duty seems clear. No ethical excuse for inaction is available to any of us. After the Carnegie and Stuckey reports, we cannot claim ignorance of the problems of legal education. Nor can we claim the general ethical excuse of not being able to do anything about the problem. As a profession, we have the means and the ability, and with the insight of Carnegie and Stuckey, the clear knowledge to at least begin the process of reform.”(page 13) 

I agree with Distelhorst and Dolin, and I would add the notion that we probably also have a fiduciary duty to our students to provide the best education we can provide.  It won’t be long before prospective students are able to figure out which law schools really care about preparing them for the bar examination and for practice and which schools and teachers have not given much thought to what they are teaching or how they are teaching it.

Distelhorst and Dolin also recognize that all three branches of the profession need to work together to create a meaningful response to the Best Practices book and the Carnegie report.  They call on the Ohio State Bar Association to convene a task force or commission consisting of equal representation of the practicing bar, bench, and Ohio’s law schools to formally study the reports and make recommendations to the Supreme Court of Ohio.  They specifically call on the Ohio Supreme Court to require clinical education as a prerequisite for taking the Ohio bar examination.

I agree that the practicing bar and the judiciary should play a greater role in shaping the future of legal education than they have played in the past.  I am not so sure, however, that reforming legal education on a school by school or state by state basis is the wisest or most efficient way to proceed. 

On page 50 in the Best Practices book, we  say that “[c]ollaboration among all law schools would make the transition easier and improve the quality of the results.  Perhaps teams of law professors from multiple schools could work together preparing proposed statements and illustrations of outcomes.  Perhaps it is time to reconsider the MacCrate Task Force’s recommendation to establish an “American Institute for the Practice of Law” to help coordinate research into and implementation of ways to improve the preparation of lawyers for practice.

The Outcomes Committee of the ABA Section of Legal Education and Admissions to the Bar recently recommended that the ABA’s accreditation standards be amended to describe the core outcomes that law schools should be expected to achieve.  If the Council of the Section accepts this recommendation, the ABA may save everyone else a lot of trouble by establishing a baseline of educational objectives to which each school can add others that are consistent with its mission. 

I think every state bar association should create a committee or commission on legal education, like Distelhorst and Dolin suggest.  The bench, bar, and academy need a forum where they can share ideas for improving legal education.  It also may turn out that leadership for change may have to come from various places on a state by state basis, including state supreme courts.  For now, however, I remain hopeful that the ABA Section on Legal Education and other organizations will help stimulate and coordinate reforms on a national level.

Distelhorst and Dolin propose that the Ohio Supreme Court should impose “some requirement of mandatory clinical education as a prerequisite for taking the Ohio bar examination.” (page 14)  I do not fault them for not proposing specific language for a rule before a committee or commission is appointed.  I would point out, however, that simply requiring clinical education before bar admission may not accomplish very much and could even be harmful to students. 

The Best Practices book and the Carnegie report stress the importance of giving law students opportunities to engage in the supervised representation of clients. The first step, however, should be to determine which educational goals one wants to achieve by requiring clinical education.  Then one can design a course or program to accomplish those goals.  (See, generally, Chapter 5 in the Best Practices book.)  One must always keep in mind the difference between experiential learning and experiential education.  (Best Practices, p. 165)  

Distelhorst and Dolin’s insight that law teachers can no longer ignore with impunity the need to reform what they teach and how they teach it is a valuable insight.  But there is no quick fix or “silver bullet” that will cure the shortcomings of legal education in the United States.  The first step is to decide what we should be trying to accomplish during law school.  The participation of the bench and the practicing bar in this discussion is critical.  We should, however, resist urges to tinker with specific aspects of the law school experience until we’ve taken a comprehensive look at our programs of instruction.

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One Response

  1. Very interesting. I teach at the University of Georgia, and have been thinking about a way to accelerate the implementation process — through creating comparative educational data on “best practices,” as Deborah Rhode at Stanford has described, and using this to rate schools in the annual U.S. News survey.

    I’ve been blogging at Prawfsblawg the past few weeks about using the U.S. News surveys to rate schools on relative educational quality, thus creating a race to the top in legal education. I’m planning on doing it on a limited, pilot basis this fall, and am in the process of forming an Advisory Board, with Nancy Rapoport, fomer dean at Houston and Nebraska, as its charter member.

    The basic gist is summarized here:
    http://prawfsblawg.blogs.com/prawfsblawg/2008/07/the-legacies-of.html

    Most of the posts are collected here:
    http://money-law.blogspot.com/2008/07/value-added-law-schools.html

    And a sample voters’ guide is here:
    http://prawfsblawg.blogs.com/prawfsblawg/2008/07/stanford-harvar.html

    One thing that will be critical, I think, is the support and help of people like you, Professor Stuckey, and your colleagues here, and Dean Wegner and her Carnegie colleagues. I can be reached at jsolomon@uga.edu and would welcome the opportunity to talk further about this with anyone who is interested.

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