What’s going on in California? “TFARR- recommended” 15 credits of competency training

For those who did not closely follow the California State Bar debate on the requirement of 15 credits of competency training for bar admission (the work of the Task Force on Admissions Regulation Reform, or “TFARR”), I summarize the current status.  (Although I am currently co-prez of the Clinical Legal Education Association, known as CLEA, this post is not written with that hat on.)  This is my own thinking, albeit, informed by the excellent work of the CLEA Advocacy committee.

The TFARR process was two-staged, over a three year period, with opportunities for public comment throughout. CLEA  participated in that process and submitted five separate comments on the proposals that are available at http://www.cleaweb.org/advocacy under “Briefs and Other Advocacy” (documents 4-8).

In the end, TFARR recommended 15 credits of competency training which can be achieved in a variety of ways (in addition to how experiential credits can be earned under the new ABA regulations), and which include six credits of summer work. You can read the TFARR Phase II Final Report  at: http://www.calbar.ca.gov/AboutUs/PublicComment/Archives/2014PublicComment/201411.aspx

The process was complete in November, 2014, with final TFARR recommendations to the State Bar Board of Trustees (that responded to public comments) and unanimous adoption by the Board: http://board.calbar.ca.gov/Agenda.aspx?id=10891&tid=0&show=100008800&s=true#10013881 (agenda item 113). The TFARR Phase II FInal Report represents a compromise based on extensive input.

Lately, some confusion has arisen because of a letter posted to the AALS website authored by a non-standing committee of Deans.  The confusion arises because:

  1. Neither AALS nor this special Dean’s committee ever participated in the two stage TFARR process and so appear to be sort of “johnny come latelys, ” and
  2. The letter mistakenly focuses on an earlier draft of the final proposal failing to recognize the compromises already reached in the final proposal.

I understand that there are efforts underway to correct the confusion which makes me happy since the Deans’ letter is signed by two people whom I have long admired in a variety of contexts.

Other blogs are already exploring the 15 credit  proposal and its interesting and creative approach. For example,   “Kudos to California”  What do our readers think?

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9 Responses

  1. Regardless of where one stands on the substance, AALS leadership should be embarrassed by how they handled this process. Process failures include: circumvention of the regular period for commenting and feedback on the California Proposal; failure to ensure that the ad hoc committee commenting on the proposal based its comments on the actual proposal [it did not]; failure to consult the AALS’ own clinical section committees before posting to ensure the post was accurate & to ensure competing voices from standing committees could be heard; and initially refusing to take down or revise the statement when its inaccuracies were brought to light. As lawyers, we must demonstrate a respect for process and accuracy. The AALS did neither. While I am pleased to hear the AALS is attempting to remedy its errors, I am extremely disappointed by how the entire process was handled. The AALS has lost credibility. Whether it regains that credibility will depend upon how it handles this mistake and the procedures it puts in place to stop something like this from happening again.

  2. As I said on Professor Merritt’s blog: The predominant method of legal education used today was developed in the nineteenth century at an elite law school for elite, white, male law students who had graduated from elite colleges. Law schools must adopt an approach to legal education that works for all of today’s students. The California proposal is a major step in that direction.

  3. I was contacted privately by my former Dean Tom Guernsey, now Dean and President of the Thomas Jefferson Law School. Tom has been involved in discussions about the California proposal since he became Dean and has spoken to bar groups and the California Board of Bar Examiners. He also has written a bar journal piece in opposition to this proposal. With his permission, I provide his thinking below: reasons:

    “It is hard to disagree that more experiential learning is a bad thing, and I would wholeheartedly support the California proposal if it were part of a comprehensive look at legal education in general and bar admission specifically, but it is not. The core problem with the California proposal is that it was developed without serious consideration of legal education and preparation for the bar as a whole.

    As one example, let’s do the math. (You can disagree with me on some of what follows, but I will only be on the margins).

    If you take all of the subjects tested on the California bar examination and all the ABA required courses, you have typically around 25 law school courses. Note that a subject on the bar exam often takes more than one course, for example Federal Civil Procedure and California Procedure. If the average law school course is 3 credit hours, you have 75 credit hours that, for most applicants, are required–either because the ABA requires it or they think they need the course in order to pass the bar..

    The ABA requires 83 credit hours to graduate from law school, many require more. Thomas Jefferson, for example requires 88. This leaves, in the Thomas Jefferson example, 13 credit hours the typical student really has for electives. California now seeks to use up a significant number of those credit hours by requiring more experiential learning.

    Depending on the final rules about what counts in California and understanding the ABA already requires six credit hours of experiential learning, the number of additional credit hours required could be as many as nine. In my example, that leaves 4 credit hours for students to choose true electives, or to address other reforms being bandied about.

    Want to train our students to work in the new economy, a student can take four hours of IP, but if you want to take a course on business finance, or regulatory compliance as well, too bad.

    Think legal education is too long? Try to teach those 25 courses in two years rather than three.

    Think you can squeeze enough experiential learning into a substantive course to meet the California proposal (what many schools are thinking about) and still cover the subject enough for the bar example. Good luck.

    A comprehensive approach to reform would, among lots of other things, not just add an experiential requirement, but have a corresponding reduction in the number of subjects on the bar exam.

    Does it really take all these subjects to test legal analysis?”

    I agree with Tom that California and other states should reduce the number of subjects tested on the bar. That issue has been discussed on this site earlier, including by Tom himself! https://bestpracticeslegaled.albanylawblogs.org/2012/10/11/the-bar-exam-inhibits-curricular-reform/

    However, sometimes change comes one step at a time. If California adopts the 15 credit proposal, it can then focus on reducing the subjects taught on the bar exam. Changing one factor in the equation should compel serious consideration of the other components.

    • Why can’t some bar courses be taught as experiential courses? Education research has shown that students remember more and can manipulate their knowledge better with active learning. For example, Evidence would work much better if it were an experiential course. Students need to do more than memorize the rules of evidence; they need to be able to apply them.

      Also, 26% of the California bar tests practical lawyering skills.

      • Great point!!

      • Great point! We know that education is not the “filling of a pail”….exposure to an area of the law for the bar exam makes sense. HOWEVER, doctrinal pushing of information towards bewildered struggling students does not. The academic support and bar prep experts have told me to inspire the students so that they are passionate about the subject and let the bar prep courses (taken immediately prior to the exam or the semester before) handle the stupid nuances which new lawyers are not expected to know anyway. Our MBES and UBES really are defective and biased gatekeepers to our justice profession….but experiential learning can ameliorate those defects and biases.

  4. Deborah Merritt over at Law School Cafe has engaged in a thoughtful analysis of the proposal http://www.lawschoolcafe.org/thread/student-choice/

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