January 07, 2014

Ellmann v. Leiter on the proposed clinical/experiential learning requirement

Following a post a few weeks back about a proposed ABA requirement for 15 required hours of "experiential" learning, I had an interesting e-mail exchange with Stephen Ellmann, who is Professor of Law and Director of the Office of Clinical and Experiential Learning at New York Law School.  I encouraged him to write up his thoughts on this issue, so that we might have a kind of public dialogue about these issues.  I post my reply to Professor Ellmann below, and I have opened comments for Prof. Ellmann to reply and for other readers to weigh in.

Remarks of Stephen Ellmann:

After Brian posted about the decision, by the Council of the ABA’s Section of Legal Education and Admission to the Bar, to circulate for comment a Clinical Legal Education Association proposal to require all law students to take 15 credits of experiential courses, he and I exchanged e-mails, and he proposed that we continue this discussion here. I thank him for this opportunity, and look forward to the discussion. 

It is certainly possible to debate some of the details of this proposal, but my purpose here is to defend its central proposition: that all law students should receive significant training in the practice of law before they graduate. This is one of those propositions that almost seems not to need defense: who would imagine a professional school that did not give its graduates training in how to practice their future profession? 

One might accept this proposition as I’ve stated it, and respond that regular law school classes are an engagement with practice. There is some force to this point. Socratic classrooms are much more engaged, I believe, than lectures. Langdell, as I understand it, aimed to teach students the skill of legal reasoning - and I certainly agree that's a practice  skill. 

But there are two major problems with the "regular coursework as engagement with practice" argument. First, the traditional study of legal reasoning is an engagement only with a fraction of the skills a lawyer needs. It includes no interviewing, no counseling, no trial skills (except a measure of advocacy training gained by some students from the give-and-take of class discussion), no negotiation - and actually not much training in legal research nor, in many courses, more than a final exam's worth of training in the many challenges of legal writing. Second, the sad truth is that the charm of this method wears off. Two years of Socratic dialogue does not make the third year of it more profoundly rewarding. Instead, it evidently leaves our students often deeply disengaged, as Mitu Gulati, Richard Sander & Robert Sockloskie have shown

I think that clinical legal educators have demonstrated over the past forty years that the other skills of legal practice are also, like legal reasoning and legal doctrine, susceptible of scholarly study and capable of being taught. Experiential courses, including clinics, externships and simulation classes, aim to do just that and so to add crucial depth to the practice preparation that law schools provide. 

One might accept the value of experiential learning too, and respond that law schools actually already do give students the experiential learning they need, by means other than course work. A commenter quoted in Brian’s post went so far as to argue that two summer jobs are “not dissimilar” to medical school clinical rotations. That position I think is untenable.  Not only is medical school clinical rotation much more extensive than two summers' worth of clerkship, but in addition medical school rotations are part of school - structured academic instruction - and summer jobs, as valuable as they surely are, aren't school.

One might also accept all this, but respond that the choice of what courses to take should belong to the students themselves. Certainly choice is important. But we teach in law schools, and it’s built in from the start in our schools that most of the courses students take must be law courses – rather than, say, political science or humanities. Even within the domain of law courses, many or most schools restrict student choice significantly – notably by prescribing most or all of the first-year curriculum and sometimes parts of the upper-year curriculum as well. I think the question is not whether we will limit students’ choices, but how much and for what reasons. And on that score, I wonder whether part of the sense that 15 credits of experiential learning is too much might arise from a perception of “skills” as a single subject, rather than as a very wide range of different competencies that get used in different ways in different settings. We routinely allocate 60 credits or more to teaching “doctrine” and the skill of legal reasoning; it does not seem too much to allocate 15 to other skills of practice. Within those 15 credits, I’d certainly hope that law schools will offer their students a substantial range of courses from which to choose. 

One last point on the question of “how much?” Bob Kuehn has compiled figures on the “practice-based and clinical education” requirements in a range of other professions: architecture, dentistry, medicine, nursing, pharmacy, social work, and veterinary. Each of these requires at least one quarter of students’ training to be in clinical settings; some require one third and, last but not least, medicine requires one half (and that doesn’t include the years of supervised post-graduate clinical training that follow receiving the M.D.) The CLEA proposal is that approximately one-sixth of law students’ training be in experiential courses. It seems to me that the burden is on those who disagree with this proposal to explain why law students, unlike their peers in other professions, do not need this level of experiential preparation for the work they will soon be doing.

Reply by Brian Leiter:

Stephen states very well the value of experiential learning in law school, and on that point, I have no dispute with him.  The only question concerns what should be required.  Most law schools already require most of one of the three years of study.  Although there is variation in what is and is not required in that first year (Chicago does not require constitutional law, Yale does not require property), it is apparent that almost all law schools require all students to take, in some form or other, the basic private law subjects (contracts, torts, property), substantive criminal law, civil procedure (the rules of court procedure outside the criminal context), and basic legal research and writing at the start of their education.  I have my own doubts about that particular mix of requirements, but I have no doubts (and I do not think Stephen does either) that some doctrinal requirements in the first year, along with the crucial legal research and writing, are the crucial foundations.  (I can recall entering practice roughly 25 years ago and finding that the knowledge and skills I needed most often came from first-year contracts, civil procedure, and legal research and writing.  My impression, in the form of lots of anecdata, is that my experience was not anomalous.)  The first-year requirements, whatever their precise mix, help students learn how to read judicial opinions, teach them core rules that govern our private and public interactions, expose them to reasoning by analogy, model and demand some dialectical engagement, and teach them how to research legal issues. 

Stephen and I are, I take it, in agreement about the value of those requirements, so the only question in debate is how much else should be required

The candidates for more requirements are always numerous.  Here, in no paritcular order, are some subjects I've heard passionate arguments for as requirements:  Accounting, Evidence, Statistics for Lawyers, Constitutional Law,  Legislation, International Law, and, yes, Jurisprudence.  (In Oxford, but also in many European and South American countries that I have visited, Jurisprudence is a required course; since it is typically an undergraduate degree, 18- or 19-year-olds are often required to read Kelsen, which, personally, I think should give rise to an action in tort.) 

I teach two of those subjects, and with respect to one (Jurisprudence), I would strongly oppose a requirement, even though I think it is undoubtedly the most important and profound subject in the curriculum (at least as I teach it!), but I also am quite confident that many excellent students graduate law school without taking it and go on to distinguished legal careers in the private and public sectors.  And so, too, with Evidence:  certainly it has the virtue of being a bar exam subject, and no doubt that is why almost all students take it.  But the reality is that many lawyers--tax lawyers, regulatory lawyers, estate lawyers--have no need to understand the Hearsay Rule and its three dozen exceptions.

As a general pedagogical matter, I favor choice.  I also think law schools and law professors have an obligation to provide guidance, since even after the first year, law students still need a lot of guidance.  But substantive guidance is one thing and more requirements is another.  And there is no reason to mandate as a blanket requirement 15 hours of experiential learning.

Law schools differ, in their student bodies, in their employment outcomes.  Law students differ, in their personal and professional goals, and in their intellectual interests.  There should be a very strong presumption against any proposal of the form that, "200 law schools, and 40,000 law students all must do X."  I have written letters of recommendation for and advised many students have gone on to the most competitive federal appellate court clerkships in the United States, both when I was at Texas and since moving to Chicago in 2008.  The judges often tell the students they hire in their second year what they expect them to do during their remaining time in law school.  Not once have I heard of a circuit court judge who demanded that the student take more "experiential learning" courses.  To the contrary, they want their clerks to take Federal Courts, Administrative Law, sometimes Criminal Procedure, sometimes Securities Regulation (it often depends on the circuit):  in other words, they want their students to have deeper and broader knowledge of legal doctrine.

So, too, with the former students who have gone on to the leading private law firms, both the Cravaths and Skaddens, as well as the Bartlit Becks and Susman Godfreys of the world.  What these employers want to know is:  how smart is this student?  how good is her writing?  In twenty years, no hiring partner ever asked me, "How many experiential courses did this student take?"

I have taught fabulous students over the last twenty years, and there is no reason legal education should be designed around them and their employers.  But there is also no reason legal education should be designed without regard for them.   Forcing most of these students do to fifteen hours of experiential classes would not have made any of them, I venture, worse, but it would not have given most of them any real benefit.  Some of them would have been forced to drop some of the advanced commercial law classes, or the advanced procedure classes they might have taken.  Those doing JD/PhDs--and, yes, they are students too!--would have had to take classes that would have contributed nothing to their academic work and careers.

And then there is the reality that no law school in the United States that I am aware of is actually equipped to offering "experiential" learning adequate to the full range of careers lawyers actually pursue.    Suppose a student wants to pursue a career in corporate and partnership tax.  How many law schools offer meaningful "experiential" learning for that?  Suppose some do; how many could realistically?  Suppose a student wants to go into high-stakes M&A litigation.  Which law schools offer meaningful experiential litigation to that end?  How many could outside those in a few major cities?  I have a relative who went to a top law school and works in a thriving field, health law, with a focus on regulatory compliance.  Her most valuable "experiential" course in law school was contract drafting, and there was no clinical offering that would have been of any use to her; I've yet to see a law school that was different.

There is no question that law schools should be allowed to require the kinds of education Stephen describes, based on their judgment either that their students all need it or their judgment that students should come to them if that's what they offer.  But I think it would be outrageous to demand that every student be saddled with another 15 hours of requirements based on the claim that some students might benefit from such courses. 

I am utterly unmoved by what schools for dentists, animal doctors, nurses, etc. require.  The comparison betrays a profound misunderstanding of the law.  Oxford's H.L.A. Hart, the greatest legal philosopher of the last century, noted that you can not understand law and legal systems unless you realize that they centrally involve  rules.  His critics, like the late legal philosopher Ronald Dworkin, drew attention to the fact that how lawyers reason and argue about rules is just as important.  Both Hart and Dworkin highlight the crucial fact about lawyering that distinguishes it from dentistry:  law is fundamentally a discursive discipline, dealing in norms, arguments, and reasons.  That is why legal education, in both the United States and Europe and every other democracy I am aware of, emphasizes learning legal rules and legal reasoning.  One needs a lot of knowledge to be a good dentist, to be sure, but a lot of good dentistry is not a matter of knowing rules and how to reason about them.

One theme in recent discussions about reforms to the ABA regulation of law schools--a theme to which I am sympathetic--is that we should permit more experimentation in models of legal education.  Experimentation means that individual law schools should, of course, be permitted to mandate the requirements that Stephen envisions.  But there is no reason to mandate that all law schools follow the same model.

Comments are open:  full name and valid e-mail address required.

Posted by Brian Leiter on January 7, 2014 in Legal Profession, Of Academic Interest, Professional Advice, Student Advice | Permalink | Comments (9)

December 17, 2013

1l Enrollment in fall 2013 down 11% from the prior year

The ABA report is here:

The 202 ABA-approved J.D. programs reported that 39,675 full-time and part-time students began their law school studies in the fall of 2013. This is a decrease of 4,806 students (11 percent) from the fall of 2012 and a 24 percent decrease from the historic high 1L enrollment of 52,488 in the fall of 2010.

Approximately two-thirds of ABA-law schools (135) experienced declines in first-year enrollment from last year. At 81 law schools, 1L declines exceeded 10 percent.

At 63 schools, 1L enrollment increased from 2012. At 27 of those schools, enrollment increased 10 percent or more.

At 34 schools, the number of 1L students stayed within five students above or below last year’s figures.

Posted by Brian Leiter on December 17, 2013 in Legal Profession, Of Academic Interest, Rankings, Student Advice | Permalink

December 14, 2013

More than three dozen law schools saw average student indebtedness decline between 2009 and 2012

Detailed listing here.  Another three dozen, roughly, saw average indebtedness increase only at the general rate of inflation (or less).

Posted by Brian Leiter on December 14, 2013 in Legal Profession, Of Academic Interest, Student Advice | Permalink

December 13, 2013

More signs of the times: cost-competition among Philly law schools

Here.

Posted by Brian Leiter on December 13, 2013 in Legal Profession, Rankings, Student Advice | Permalink

December 12, 2013

Ranking of law schools by percentage of Class of 2012 that got jobs with large law firms or federal clerkships

It's here, and somewhat misleadingly titled "elite" employment outcomes.  But since it uses a size cut-off, it means that graduates who go to Barlit Beck in Chicago, or Kellogg Huber in D.C. (high-end litigation boutiques that pay top dollar and only hire the best of the best) don't count as "elite" employment outcomes!  Such is life, and no measure is ever perfect, and the results are still useful and not wholly surprising:

1.  University of Pennsylvania (75.2%)

2.  Stanford University (74.0%)

3.  Harvard University (69.7%)

4.  Columbia University (66.5%)

5.  University of Chicago (66.0%)

6.  Yale University (64.7%)

7.  Cornell University (63.9%)

8.  Duke University (63.7%)

9.  University of California, Berkeley (60.3%)

10.  New York University (57.3%)

11. Northwestern University (55.4%)

12. University of Virginia (52.7%)

13. University of California, Irvine (51.8%)

14. University of Michigan, Ann Arbor (51.4%)

After these fourteen, there is a big-drop off to the next cluster:

15. Georgetown University (39.3%)

16. Vanderbilt University (38.8%)

17. University of California, Los Angeles (38.0%)

18. University of Southern California (37.6%)

19. University of Texas, Austin (34.9%)

20. Fordham University (33.2%)

21. Boston University (31.9%)

22. University of Notre Dame (31.1%)

23. Boston College (27.7%)

24. Emory University (27.0%)

25. University of Georgia (26.2%)

26. Washington University, St. Louis (25.9%)

27. George Washington University (24.2%)

28. University of Illinois, Urbana-Champaign (22.8%)

29. University of North Carolina, Chapel Hill (20.7%)

30. West Virginia University (20.4%)

31. Wake Forest University (19.2%)

32. University of Houston (19.1%)

33. Southern Methodist University (17.4%)

33. University of Alabama (17.4%)

35. University of Minnesota, Minneapolis-St. Paul (17.2%)

36. Howard University (16.6%)

37. College of William & Mary (15.7%)

38. Washington & Lee University (15.4%)

39. Tulane University (15.2%)

39. Villanova University (15.2%)

41. University of California, Hastings (15.1%)

42. University of Kentucky (15.0%)

Why does Penn come out ahead of Stanford, Harvard, Columbia, Chicago and Yale?  Penn clearly has excellent big firm placement, but I suspect they also have fewer JD/PhD students, fewer graduates going to elite litigation boutiques, and fewer going into government work--all jobs that don't count in this listing.  Geography is clearly important, too:  Fordham has long been the #3 law school in the country's biggest "big firm" legal market, and it shows up in their placement.  Schools with regional importance, like West Virginia and Georgia, do well in federal clerkships and placement with the large firms in their areas.  But this is useful information for students to keep in mind, since the 42 schools with 15% or more of their 2012 graduates at big firms or in federal clerkships does not correspond to the top 42 schools in terms of faculty quality, or U.S. News.

Posted by Brian Leiter on December 12, 2013 in Rankings, Student Advice | Permalink

December 05, 2013

On "JD Advantage" jobs

Yes, they are real jobs (and more).  (Professor Merritt, in response to Professor Young's earlier posting, pointed to one survey that showed that more than 40% of those with JD Advantage jobs were seeking other jobs--but without knowing how many of those with JD-required jobs are also seeking other jobs, it's impossible to know what this means, if anything, about the jobs.)

Posted by Brian Leiter on December 5, 2013 in Legal Profession, Student Advice | Permalink

November 25, 2013

Benjamin Winterhalter, opportunistic liar of the day...or why law school is obviously not a "scam"

Salon must really be desperate to post this content-free piece, which takes as its question, "How...can we explain the fact that young people are still going to law school in droves?" when, in fact, applications to law school are down nearly 40%, and most law schools in the United States are experiencing varying degrees of financial stress as a result (not "raking in cash").  But never mind the facts, little Mr. Winterhalter wants to deliver his sermon:  "Why aren’t law schools ashamed of themselves?"  Well, because most of them didn't do anything shameful, that's why.  Almost all the graduates of accredited law schools passed the bar exam, and the only actual evidence on offer makes clear that the JD was a winning financial proposition for the vast majority.   There's no shame in teaching the vast majority of students to pass the bar and enabling them to enjoy substantial financial returns on their education.  (There should be shame in being an opportunistic liar like Mr. Winterhalter, who calculated, obviously correctly, that he could capitalize on the current hysteria to get a fact-free smear piece into Salon!  I will let pass in silence his juvenile discussion of economic analysis of law.)

It is time for a little reality-check, even in cyberspace.  In 2008, the global capitalist system suffered a severe recession or depression, which soon spread to the legal sector, exacerbating trends affecting reduced demand for lawyers.  Law schools did not cause that economic catastrophe.  Beginning in 2011, Senators Boxer and Coburn began challenging the ABA about the accuracy of employment data reported by ABA-accredited law schools.  This data was almost certainly massaged, due to the malign and longstanding influence of U.S. News (as I noted a decade ago!).   Annoyed U.S. Senators, unsurprisingly, caught the attention of the ABA, and soon enough, the ABA mandated improved employment data reporting, thus making clear how poorly graduates of some law schools were faring during the recession.  Around the same time, David Segal, a journalist who had never before covered law, began writing a series of front-page stories in The New York Times about the collapse of the job market for new lawyers, as well as producing unrelated hatchet jobs on legal education.

In the wake of all this, applications to and enrollments in law schools, unsurprisingly, entered a steep decline.  Law schools began reducing tuition and cutting faculty.  But in cyberspace, a different set of events, only partly related to the preceding, began to unfold.  The global recession took its toll on recent law graduates, like so many others. Some of the victims took to the Internet, enacting Nietzsche's observation more than a century ago that,

Every sufferer instinctively looks for a cause of its distress, more exactly, for a culprit, even more precisely for a guilty culprit who is receptive to dsitress--in short, for a living being upon whom he can release his emotions, actually or in effigy, on some pretext or other; because the release of emotions is the greatest attempt at relief, or should I say, anaestheticizing on the part of the sufferer.  [Cf. Barash & Lipton, Payback (Oxford, 2011) for empirical evidence in support of the Nietzschean hypothesis.]

There was, undboutedly, considerable suffering by lawyers and new law graduates--jobs lost, careers thwarted, huge debts looming and undischargeable in bankruptcy.   In cyberspace, some of those suffering--as well as some muddle-headed law professors and opportunistic charlatans-- identified a "guilty culprit":  it was law schools.  Thus was born the bizarre meme that law school was a 'scam.'  (Mr. Winterhalter is a late arrival to the meme.)  Although U.S. law schools had for decades successfully trained most graduates to pass the bar and become lawyers, this no longer mattered.  Massaging employment data to game U.S. News rankings was now portrayed as a concerted and sinister attempt to fraudulently induce students to come to law school who otherwise  never would have dreamed of doing so.  Indeed, lawsuits by victims of this alleged "scam" were soon filed around the country, but courts have uniformly repudiated their theory about the culprits, noting the obvious "elephant in the room," i.e., the global recession of 2008.  The law professors who taught the plaintiffs apparently well enough to pass the bar were clearly not responsible for lack of jobs--how could they be?  Some law schools still face possible liability, and perhaps rightly so:  there are 200 accredited law schools in the country, and some may have acted unethically and perhaps illegally.  But law schools are not culpable for the economic catastrophe of the last five years, and the vast, vast majority did not defraud or scam anyone.  This much is obvious to the courts, indeed, to anyone awake. 

The sensible response to an economic catastrophe, both inside and outside the legal profession, has turned into an utterly irrational attempt by the misguided or the malevolent to find "guilty culprits" to blame for miserable circumstances. Mr. Winterhalter is just the latest manifestation of this irrational response, but cyber-ranting like his still proliferates in which law schools, judges, lawyers, law faculty, and anyone who resists the herd mentality of the deranged scam-bloggers are disparaged, demeaned and defamed without regard for the facts and without any actual evidence of wrongdoing.

Posted by Brian Leiter on November 25, 2013 in Law in Cyberspace, Legal Profession, Of Academic Interest, Rankings, Student Advice | Permalink

November 21, 2013

We are on track for there to be more new jobs for lawyers than there are new law school graduates...

...by 2016 or 2017.  Hopefully this will help some of those currently unemployed, but it is also probably quite good news for those starting law school now or next year.  (I commend Professor Young for taking the time to run the numbers, which in the current toxic cyber-environment where facts are never welcome [recall the irrational reception in cyberspace of the Simkovic & McIntyre study, even though it completely altered the terms of debate in the real world], requires considerable courage.   I also commend to the attention of readers Professor Young's profiles of graduates of the Appalachian School of Law, a nice snapshot of the important role legal education plays in communities throughout the nation.)

UPDATE:  Deborah Merritt (Ohio State) takes issue with some of the numbers.  For reasons that are unclear, she also discounts "JD Advantage" jobs.    Whereas Professor Young generally made optimistic assumptions given the available data, Professor Merritt makes pessimistic assumptions on the same data, though far as I can see, the available evidence is neutral as between them.

Posted by Brian Leiter on November 21, 2013 in Legal Profession, Student Advice | Permalink

November 09, 2013

Michigan's Undergraduate Career Services Center compiles a useful list of testimonials by students happy to have gone to law school...

...and who went to a wide variety of law schools.  Good to have a little reality-check on the insane cyber-ranting by individuals, many of whom are no doubt victims of circumstances and genuinely aggrieved, but who seem tragically confused about the causes of their suffering.

Posted by Brian Leiter on November 9, 2013 in Legal Profession, Of Academic Interest, Student Advice | Permalink

November 07, 2013

Trends in LSAT-taker, applications to law schools, and enrollments over 45 years

This is illuminating.  Of crucial significance about the recent drop (on all three fronts) is that there are more ABA-approved law schools now than there were just a dozen years ago.

UPDATE:  Here's a list of ABA-approved law schools by year of approval--we've seen an increase of roughly 10% in the total number of law schools in just the last dozen years.

Posted by Brian Leiter on November 7, 2013 in Legal Profession, Of Academic Interest, Student Advice | Permalink