The following post comes to us from Tom Guernsey:
In the early 90s, as an associate dean at the University of Richmond School of Law, I attended the first Conclave on Legal Education held by a state bar association. The conclave brought together leaders in the bench, bar, academy, and bar examiners to discuss the future of educating lawyers. The setting was spectacular, Wintergreen, an upscale ski/golf resort in the western part of Virginia. The setting was perfect: serene, isolated, informal, just what you would want for a serious conversation about the status and future of the education of lawyers among the four major players. I joked later that it was fun. The practitioners dumped on law schools, the law schools dumped on practitioners, both dumped on the bar examiners. Everyone was polite to the judges.
Fifteen years later, in the spring of 2007, having been a dean for 11 of those years, I attended another conclave at an airport hotel in Chicago, organized by the American Bar Association’s Council on Legal Education and Admission to the Bar.
The conversation was depressingly similar. Law schools were not teaching students to practice law; faculty scholarship was impractical; new faculty did not have enough practice experience, yada, yada, yada.
This conversation is still going on and law schools are taking the brunt of the criticism for failing. The reality is, however, that the bench, the bar and the bar examiners are equally to blame for law schools not making the innovative changes needed. Brian Z. Tamanaha’s Failing Law Schools is especially critical, of course, of the faculty and two parts of the bar that regulate legal education. Surprisingly, at least to me, there is scant attention in Failing Law Schools, or anywhere else, to what is one of the biggest impediments to curricular reform – the bar examination and the related matter that state high courts requirements make meaningful curricular reform difficult.
The ABA may accredit law schools for Department of Education purposes, but it is typically the case that state high courts, separate and apart, that have delegated to the ABA the accrediting function for the purpose of who can take the bar examination. In some state, such as New York, the high court also imposes regulations more strict than the ABA.
The fact is, no matter what else a law school sees as its mission, its students and alums see the primary goal as preparing students to pass the bar examination. I think this is reasonable. What I think is unreasonable is to create bar examination requirements and additional state high court regulations that stifle creativity that everyone seems to be demanding from “failing law schools.”
The most obvious example is the number of subjects tested on the bar exam. I am not arguing that we do away with the bar exam, or substitute some other credentialing process (though I could). My point is simply that given the continuation of the typical bar exam, subject matter coverage is too broad, resulting in serious constraints on meaningful curricular reform.
In New York, 19 subjects are tested on the exam. Because the six multistate topics are also covered on the essay, students must learn both New York law and general principles (or federal rules). For example the multistate tests the Federal Rules of Evidence while the essay portion tests New York evidence law. Students not surprisingly feel the need to take these courses (and in many instances are required to take the courses). At Albany Law School, to cover all of this material requires taking courses that at a minimum total 65 credit hours. In addition, students need to take at least 10 additional credits to cover mandated writing and skills courses. So what are we left with to be creative? Somewhere between 10 and 15 credit hours, depending on how many minutes in excess of the ABA required 58,000 the school requires.
I’m just suggesting that you don’t need 19 subjects (six of which you have to learn twice) to test an applicant’s ability to do doctrinal analysis, especially when it means law schools end up with precious little time to do other things we are criticized for not doing.
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