Legal Education in Transition: Trends and Their Implications

• Publication year: 2021
• Citation: Vol. 94

94 Nebraska L. Rev. 1. Legal Education in Transition: Trends and Their Implications

Legal Education in Transition: Trends and Their Implications

Sheldon Krantz and Michael Millemann(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 2

II. What the Critics Are Saying About Legal Education and Steps the Regulators Are Taking to Stimulate Reform ............................................... 4

III. Recent Innovations in Legal Education that May Help to Shape Its Future ................................... 9

A. First Year of Legal Education ..................... 10

B. The Upper-Level Curriculum ...................... 18

1. Expanding and Diversifying Experiential Education ..................................... 18

a. An Overview ............................... 18

b. Practicums ................................ 19

c. Technology Clinics ......................... 21

2. Using Simulation to Teach Transactional Lawyering Skills .............................. 28

3. Offering Areas of Concentration of Study or Specialization as Part of Law Studies .......... 29

4. Using the Third Year of Law School as One of Transition from Law School into Practice ....... 32

5. Integrating J.D. and Post-J.D. Education ....... 33

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IV. A Possible Agenda for Law Faculties Building on Developments to Date ................................. 41

A. ABA Accredidation Standards and Bar Admission Requirements, Striking the Proper Balance Among the Goals of Legal Education ...................... 42

1. Core Competencies ............................ 43

2. Experiential Course Requirements ............. 43

3. Evaluation of Legal Education and Learning Outcomes ..................................... 48

4. Faculty Status and the Role of Practitioners in Legal Education ............................... 49

B. The Law School's Role in the Transition Process from Education to Practice ........................ 52

C. The Law School's Responsibility to Address Professionalism Responsibilities and Obligations Relating to the Access-to-Justice Crisis ............ 54

V. Conclusion ............................................ 57

I. INTRODUCTION

This is a pivotal moment in the history of legal education. Revisions in American Bar Association accreditation standards, approved by the ABA House of Delegates in August 2014, both impose new requirements and provide law schools with greater flexibility in how they educate their students.(fn1) ABA and state and local bar association task forces are pushing for significant changes in legal education, and some jurisdictions, such as New York and California, are beginning to mandate changes in licensing requirements that will have direct implications for law schools. Equally important, the legal profession in this country is in the throes of market-mandated change.

Unbeknown to many, a number of law schools throughout the country are making important reforms in the interrelated ways in which they prepare law students for practice, teach about professionalism, and introduce students to the extraordinary access-to-justice problems in this country and the legal profession's role in addressing them. Changes like these belie the oft-quoted skeptics of legal education, who said over twenty-five years ago that "[i]nnovation in legal education comes hard, is limited in scope and permission, and generally dies young."(fn2) Innovation is breaking out all over, and the pace of change is accelerating.

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Thus, our goal in writing this article is not to add our voice to the "cottage industry of criticism [that] has grown up about legal education."(fn3) We have different purposes in mind-to describe the new courses and initiatives that law schools are developing; to suggest how law schools might take advantage of and build upon such developments; and to propose ways that law schools and the profession can better coordinate their efforts to prepare lawyers for practice.

In spite of calls by President Obama and others to reduce legal education to two years, we recommend retaining the current three-year model but with some modifications that differ from those of traditionalists like Justice Antonin Scalia, who argues that the third year is needed "to study systematically and comprehensively entire areas of the law."(fn4) We also endorse a nascent movement by some law schools, state and local bar associations, and at least one court system, to create transitional post-J.D. programs, typically referred to as "incubator" programs.(fn5) These programs provide expanded employment opportunities and needed training for recent graduates and provide some help addressing the access-to-justice crisis. In the aggregate, they are ad hoc steps toward potentially more substantial post-graduate apprenticeship programs.

It is impossible to generalize about the precise reasons for this period of innovation other than to observe that it is happening against a background that includes the recession in law business, a declining job market for recent graduates, a downturn in law school applications, a resulting budget crisis for the schools, critical studies and task force reports, the intervention of regulators, the pervasive impact of the U.S. News and World Report rankings, and increased competition for applicants among law schools. In this Article, we recommend a

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process for thinking about reforms more strategically building upon positive developments already underway.

In Part I, we briefly describe what the critics are saying about legal education and steps the regulators are taking to stimulate what they perceive to be needed reforms. In Part II, we provide an overview of reforms now underway or in development in the first year; developments in experiential courses and programs in upper-level curricula; the emergence of some programs of specialization; the movement to add practice-based courses to the third year; and the creation of post-J.D. transition programs. In Part III, we propose an agenda for law faculties in the strategic planning that law schools should now be undertaking in light of developments underway; the just-approved revisions in ABA accreditation standards; and, in our view, the general need to add more practice-based experiences to most law schools' curricula.(fn6) We believe this agenda should include, among other things, rebalancing the curriculum to accomplish the traditional goals of legal education; more effectively preparing law students for practice; and more effectively introducing them to the importance of professionalism and the profession's essential role in promoting equal access to justice.

II. WHAT THE CRITICS ARE SAYING ABOUT LEGAL EDUCATION AND STEPS THE REGULATORS ARE TAKING TO STIMULATE REFORM

There is no lack of critics of contemporary legal education.(fn7) The Carnegie Foundation for the Advancement of Teaching, for example,

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concluded that law schools generally "give only casual attention to teaching law students how to use legal thinking in the complexity of actual law practice" and "fail to complement the focus on skill in legal analyses with effective support for developing ethical and social skills."(fn8)

Two years later, the American Law Institute, the American Bar Association, and the Association for Continuing Legal Education sponsored a Legal Education Critical Issues Summit.(fn9) Participants included lawyers, bar leaders, judges, law school deans and faculty, and law firm and continuing legal education professionals.(fn10) The Summit concluded that law schools must better ensure that "their graduates are capable of serving as effective beginning professionals."(fn11) More specifically, the Summit recommended that law schools better integrate "core practice competencies"-such as factual research skills, oral and written communication and counseling client skills-into their curriculum.(fn12)

In the fall of 2013, the New York City Bar added its voice.(fn13) In a report by its Task Force on New Lawyers in a Changing Profession, the City Bar Association concluded: "In light of the changing professional environment, we believe it is imperative for law schools to offer a broad range of curricular initiatives in addition to traditional casebook offerings."(fn14) The Task Force specifically recommended that the following become part of the core of new lawyer education:

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* Substantial training and experience in complex problem-solving exercises, project management, working in teams, and exercising professional judgment in litigation and transactional settings.

* Exposure to and participation in negotiation, alternative dispute resolution processes, client and witness interviewing, counseling, and oral advocacy.

* Participation in hands-on clinical or other experiential training-at least one such experience during the law school years for every law student and, optimally, more than one experience or a defined period of working full time in a highly supervised training environment.

* Exposure to well-structured teaching by experienced practitioners, provided in coordination with academics.

* Instruction in the profession's ethics and commitment to providing community and public service, including the promotion of access to justice through the provision of assistance to indigent clients.(fn15)

Law schools are not the only professional schools being...