Why the American Bar Association Should Require Law Schools to Increase and Improve Law Students' Practical Skills Training

• Publication year: 2022

45 Creighton L. Rev. 869. WHY THE AMERICAN BAR ASSOCIATION SHOULD REQUIRE LAW SCHOOLS TO INCREASE AND IMPROVE LAW STUDENTS' PRACTICAL SKILLS TRAINING

WHY THE AMERICAN BAR ASSOCIATION SHOULD REQUIRE LAW SCHOOLS TO INCREASE AND IMPROVE LAW STUDENTS' PRACTICAL SKILLS TRAINING

Mitchell D. Hiatt - '12

"The fundamental issue is that law schools are producing people who are not capable of being counselors."

-Jeffrey W. Carr(fn1)

I. INTRODUCTION

Law students currently do not obtain adequate practical skills training during law school to practice law after they graduate.(fn2) Law schools should improve the practical skills training they provide to law students.(fn3) Improving practical skills training will require law schools to generate additional resources.(fn4) In generating additional resources, law schools should not increase student tuition; rather, law schools should divert resources currently dedicated to producing scholarship and dedicate those resources to improving practical skills train-ing.(fn5) Law schools and the individuals who manage them are unlikely to institute such changes without external pressure or obligations imposed by the American Bar Association.(fn6) As such, the American Bar Association should require law schools to decrease their emphasis on producing scholarship and dedicate recently-freed resources to improving practical skills training.(fn7)

This Note will first discuss the current nature of law schools and legal education and the problems facing new law students and recent law school graduates as a result.(fn8) This Note will then argue that law schools do not provide adequate practical skills training to law students to enable graduates to practice law.(fn9) Next, this Note will argue law schools should decrease their current emphasis on producing scholarship in order to generate additional resources for improving practical skills training, rather than simply increasing student tuition.(fn10) Finally, this Note will show that law schools are unlikely to initiate the required changes necessary to improve law students' practical skills training and that the American Bar Association must act in order to improve practical skills training in law schools.(fn11)

II. BACKGROUND

A. THE CURRENT NATURE OF LAW SCHOOLS AS ACADEMIC INSTITUTIONS

Today, law schools are primarily academic institutions.(fn12) As academic institutions, law schools are modeled after other graduate school programs where faculty members teach students, produce scholarship, and engage in some level of service.(fn13) Many universities have placed increasing pressure on law schools to become more scholarly establishments.(fn14) While law schools are academic institutions, law schools are unique from many other graduate education programs in at least one sense-law students attend law school to become members of a particular profession (attorneys) and, with the exception of a few other specialized professional fields such as medicine, business, and ministry, most graduate students attend graduate school for careers in academia.(fn15) In addition to the pressures universities have placed on law schools to become more scholarly establishments, law schools also face increasing pressure to improve the quality of legal education.(fn16) Law school faculty members are responsible for training future attorneys, judges, and government and business leaders.(fn17) Law school faculty members must often divide their attention to competing demands to produce scholarship and demands to train future attorneys.(fn18) The competing demands on law school faculty members to produce scholarship and train future attorneys present interesting problems for law schools, some of which are further discussed below.(fn19)

B. THE TRADITIONAL APPROACH TO GENERATING ADDITIONAL RESOURCES

Law schools rely on student tuition money and, to some extent, alumni donations to fund their operations.(fn20) Law schools also receive funding through public subsidies and tax benefits.(fn21) As law schools face competing demands to produce more scholarship and improve future attorneys' training, law schools must generate more resources to fund those activities.(fn22) One way to generate additional resources for improved teaching is to decrease resources currently dedicated to producing scholarship.(fn23) Law schools, however, have traditionally generated more resources simply by increasing student tuition.(fn24) Some scholars contend law schools are obligated to devote the resources they obtain from increased student tuition to benefit students.(fn25) The states expect law schools to provide legal education that prepares law students to practice law.(fn26)

C. THE SKILLS REQUIRED TO PRACTICE LAW

Practicing law involves interacting with other people and having interpersonal skills-lawyers need to be able to: (1) analyze factual circumstances and the law; (2) make decisions based on their analysis of the facts and the law; and (3) consider what they learned from their interpersonal contact.(fn27) Additionally, lawyers need to know how to work unsupervised and with others, network, be creative, and be attentive to client needs.(fn28) Now, many believe law students are not adequately prepared to practice law.(fn29) Indeed, many law students do not understand the business of practicing law, lack adequate non-analytical skills, and do not possess adequate networking and managerial skills.(fn30) Some legal employers complain that law students write ineffectively, do not understand the businesses of their clients, do not work well with others, and do not possess good work ethic.(fn31)

D. CURRENT ISSUES FACING LAW STUDENTS AND RECENT LAW SCHOOL GRADUATES

Some contend the cost of law school is too high in comparison to the value students receive.(fn32) This is especially true considering the current state of the economy with respect to law school graduates.(fn33) In the past, some law school graduates could obtain high paying jobs notwithstanding the fact they did not possess any professional skills.(fn34) Part of the reason why law school graduates could obtain jobs without possessing many professional skills was there had been sufficient capital in the legal services market for employers to afford paying graduates to learn on the job.(fn35) Today, as economies are strained, the market for legal services has shrunk.(fn36) As a result, law firms are responding to the decrease in demand for legal services by hiring and retaining fewer law students than in the past.(fn37) Also, law firms have implemented several cost saving measures, including outsourcing more basic legal work to low cost legal service providers and implementing alternate billing structures.(fn38) Moreover, clients have begun demanding that junior lawyers add value to the projects they work on.(fn39) Some firms force new associates to assume the costs of their professional skills training acquired on the job by paying those associates reduced salaries.(fn40) Moreover, partners are facing new pressures, which make them less inclined to spend time mentoring young associ-ates.(fn41) For many recent law school graduates, the employment market is too weak to support their debt obligations.(fn42) When the recession began, many law firms began laying off large numbers of lawyers and severely curtailing their hiring.(fn43) Moreover, the recession has made it difficult for older lawyers to retire and have new associates take their place.(fn44) Also, the market for legal services is becoming increasingly global as law firms begin to embrace the idea of outsourcing legal work to other countries at lower costs.(fn45) Many law students cannot find legal jobs within nine months of graduating law school.(fn46) Other law students do find legal jobs, albeit at modest sala-ries.(fn47) For those that do find jobs with high salaries, they still find their law school debt burdensome for many years.(fn48) Consequently, the current method in financing a legal education has jeopardized the long-term supply of lawyers and weakened the supply of lawyers willing to do public service law.(fn49)

E. THE LAW SCHOOL GOVERNANCE STRUCTURE

Law schools are managed through a system of shared governance where faculty members possess substantial authority.(fn50) Often times, faculty members make many of the most crucial decisions affecting a law school.(fn51) Also, the law school administration often exists for the benefit of the faculty.(fn52) Additionally, law schools' trustees and parent universities are not well suited to monitor and govern the activities of law schools.(fn53) Legal employers are poorly suited to influence law schools' policies as well.(fn54) Furthermore, law students and alumni possess little incentive to lobby their law schools to change any of their practices.(fn55)

Under this system of shared governance, many law schools' strategic decisions are not made by the schools' administrators, but rather by the law schools' faculty members.(fn56) Law school faculty members determine admissions policies, make faculty hiring decisions, set the schools' curriculum, and determine the direction of their respective research efforts.(fn57) Meanwhile, law school administrations are responsible for enforcing the schools' admissions policies, performing the necessary work to complete faculty hiring decisions, ensuring the schools' curriculum satisfies American Bar Association ("ABA") standards, and...