How Law Schools Measure Up
In 2007, the Carnegie Foundation for the Advancement of Teaching issued Educating Lawyers: Preparation for the Profession of Law.1 The two-year study in the United States and Canada was based on field evaluations in 16 institutions during the 19992000 academic year. Although this topic had been raised in a 1992 report issued by the American Bar Association, the 2007 Carnegie report renewed the discussions surrounding law school education throughout the legal community. But how should legal education change and what did the report actually say? It isn't as simple as stating that law schools should be including more practical experiences in their curriculum; it is more subtle than that. Most professional schools, including medical and business schools, frequently review their curriculum by adapting to changes in their profession. Advances in science and changes in global economic conditions will drive the need to modify clinical training or expand course requirements in any discipline or profession. Until recently, however, law school education had essentially remained unchanged in a century of teaching.
The Carnegie Foundation's resulting examination found the typical law school curriculum conforms from school to school with only casual attention to the application of legal thinking in the practice of law. This conformity resulted in "habits" of thinking, encouraging students to focus on the validity of a legal claim based on precedent. Conversely, the element of connecting conclusions based on situational complexity involving people, social consequences, or ethics was outside the practice of the Socratic lecture and Langdellian case dissection method.
The highlights of the Carnegie report state that lawyers are best taught with a curriculum that integrates doctrine, skills, and professional identity. Ideally all three components should be assembled within the same course. For example, this could be achieved by separating "factual investigation," "professional responsibility," and "process" within one course of study. The reliance on the Socratic and Langdellian approaches to learning are overused. According to the report, law schools have lagged behind other educational institutions in how they assess learning and provide feedback that improves learning outcomes.
Compared with the centralization, supervision, and mentoring received by medical and nursing students, as well as the supervised practice of teachers and social workers, law school students receive marginal clinical and supervised training. In most instances law school students are at a distinct disadvantage upon entering school; they have little preparation and for the most part are starting from scratch. The conclusions drawn from the report stated that law schools do not go far enough to help students develop professional competence and professional identity. The conservative tradition of law school education implied that regardless of these findings, sweeping changes were not to be expected quickly.
However, marketplace conditions are a big incentive to drive change even for the most ardent supporters of tradition. The confluence of the Carnegie report's release and the global economic crisis has built momentum; we see a review of curriculum taking place like never before. The legal labor market can no longer hire graduates at compensation rates that do not foster profitability or who can't be utilized effectively because they lack the practical training to do the job they are hired to do. Most clients will no longer continue to pay high hourly rates for attorneys "in training," and public service requires effective case management to support volume with minimal support. Law firms like Philadelphia's Drinker, Biddle & Reath and Washington's Howrey both announced two years ago an apprenticeship program for first-year associates. The program involves significant hours of competency-based training and partner mentoring, along with a pay scale that is more aligned with an apprenticeship model.
Students face enormous competition for large law firm positions and although 80 percent of law school graduates go into small firms, solo practices, or public service, law school graduates no longer have the luxury of learning "on the job." Washington and Lee University has led a significant educational change by modifying traditional third-year curriculum to focus on clinical simulations. Rodney A. Smolla, Furman University president and former dean of Washington and Lee, believes the focus of preparing students to practice in the real world will be a historic change in the landscape of legal education. Instead of traditional classroom courses, Washington and Lee's third-year students can enroll in four lengthy simulations that approximate a real-world legal problem. Fictitious clients and case files are assigned and the student must monitor billable hours, dockets, motions, and deadlines for submitting briefs. Although initially this third-year clinical was optional and the school had anticipated less than half of the students would enroll, nearly two-thirds of that class signed up.
In the United States, lawyers are viewed as serving both the interests of justice and the interests of their clients. The report asserted that professional identity is a big element missing in the education process. This has recently been addressed by two schools. Duke University Law School and the University of California, Irvine School of Law, have implemented a yearlong course examining different options for legal careers and professional ethics elements associated with various career tracks.
The University of California, Los Angeles School of Law, has developed an LL.M. course for transitioning to practice. This course is offered to recent graduates and is intended to mirror the preparation former graduates received during their first year as an associate. UCLA announced this program during a time when large law firms were deferring start dates for their incoming associates. While deferred, students were given the opportunity to start thinking about the rigors of legal issues and client needs and developing business skills.
The report did point out a few law schools that emphasized practical skills. For example, New York University School of Law stresses clinical experience and an evaluation of how well a student complied with the ethics code. Clearly the movement toward practical skill is increasing as the incentives for law schools are driven by economic reality, but the process is not comprehensive or refined. Without a clear mandate from deans or the ABA, even those schools professing sweeping changes are really only making minor enhancements or offering alternative real practice clinical options.
Northwestern Law School Dean David E. Van Zandt (who will become president of The New School in New York City in 2011) has stated that "law schools should go beyond simply adding skills-based courses and focus on what employers are truly seeking."2 Whether or not this single motivator is in the best interest of training attorneys, Northwestern did hire a consultant to survey hiring decision makers. The consultant surveyed law firm leaders, in-house counsel, and government attorneys who indicated that the competencies they most looked for when hiring are project management ability, teamwork, basic accounting and business practices, and a global perspective. Based on this survey, Northwestern created an accelerated two-year J.D. program in which students are required to take courses in strategy, quantitative analysis, organizational behavior, and the psychology of decision making.
What the Future Holds
The Carnegie report recommends that schools revisit the traditional faculty teaching approach that adheres to valuing legal scholarship over more costly clinical instructions. By reallocating resources, law schools could make better use of the second and third year by offering practice specialties, completing advanced clinical training, and offering closer working relationships with faculty. Even though most law schools do a good job of offering externships and clinical opportunities, they are often optional.
It remains to be seen if these real-life practice models will be successful and translate into a differentiator for the graduate candidate pool. If legal recruiters report positive hiring because students who graduate from these programs are better prepared to practice, then schools featuring these new models will be better poised to place their graduates. The competitive advantage these schools offer will create the path for change. Ultimately what the Carnegie report recognized is that addressing the gaps in training will develop an attorney population that is prepared to practice whether in large law, private practice, or public service.
1. Carnegie Foundation for the Advancement of Teaching, http://www.carnegiefoundation.org/publications/educating-lawyers-preparation-profession-law.
2. Karen Sloan, Reality's Knocking, Nat'l L.J., Sept. 7, 2009, at 1.
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