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.

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