Monday, November 27, 2023
This won't have any benefits for legal education (and certainly won't make it more "practical"), although it will be a windfall for those who teach in these areas. There may be schools whose student body and local legal markets mean that it would make sense for them to require more "experiential" courses and clinics; but not all schools are the same, and there is no justification for imposing this on all American law schools. Yet another reason the ABA should be stripped of its regulatory authority.
Of course, we've been here before: see this extended discussion in 2014 about the merit of such requirements with the late Professor Stephen Ellmann. (See also here.) From my earlier discussion with Professor Ellman:
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....
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.