Efforts to Reform Legal Education Can be Discouraging

We know that many law schools are engaged in making exciting, forward-looking changes to their curriculums and methods of instruction.  Unfortunately, there is clear evidence that some schools are just not interested in improving their programs of instruction and the ABA is not currently interested in forcing them to do so.

When ABA Accreditation Standard 302(a)(4) was adopted, many people thought it would lead to fairly rapid and eventually significant changes.  It says that “[a] law school shall require that each student receive substantial instruction in other professional skills regarded as necessary for productive and responsible participation in the legal profession.”

However, the “Consultant’s Memo on Standards Guidance” which was published on page 4 in the Winter, 2010, edition of the Syllabus (the newsletter of the ABA Section on Legal Education and Admissions to the Bar), makes it clear that the current version of Standard 302(a)(4) will not bring about any significant changes.

The Consultant’s memo explains the minimum that law schools must do to comply with the Standard, as interpreted by the Accreditation Committee.  It is obvious that the Accreditation Committee is desperately trying to persuade recalcitrant law schools to provide some professional skills training, but it has lowered the bar so much that students who are enrolled at schools that only meet that low bar will not be well served.

The  memo does make it clear that the Standard means that all students must receive some professional skills instruction.  “[T]he fact that 98 percent of the student body takes skills course is not sufficient; every student, as a requirement of graduation, must receive substantial skills instruction.”   However, the memo then explains that the “substantial skills instruction” requirement can be satisfied, inter alia, by adding a substantial counseling and negotiating module to a first year legal writing course, or by requiring students to take a one credit course in any professional skill, including for example, a one credit component of “a substantive course that includes substantial skills instruction, e.g., a corporations class where each student is required to draft substantial legal documents that are assessed by the instructor.” 

If they were not true, these previously secret and unpublished “interpretations” by the Standards Review Committee would be laughable.  I think it is a fine idea to have students draft documents in a Corporations course, but I do not think that by doing  that, and nothing else, students would be receiving substantial instruction in the “professional skills generally regarded as necessary for effective and responsible participation in the legal profession.”  I doubt that the members of the Accreditation Committee really think so, either.

Again, I view the “guidance” memo as evidence that some schools are not interested in improving their programs of instruction and that the ABA’s Accreditation Committee is not willing to hold their feet to the fire.  Hopefully, the ongoing efforts of the Standards Review Committee to draft outcomes-focused Standards will raise the bar again and, wishfully, the Accreditation Committee will not dilute their impact via secret interpretations that are contrary to the clear meaning of the Standards.

Meanwhile, I extend my best wishes to those schools that are trying to improve your programs of instruction for the welfare of your students.

Roy Stuckey

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