Hard questions about experiential learning and legal education
The American Bar Association created an Experiential Credits Working Group out of the Standards Committee suggesting three potential proposals—increasing the number of “experiential credits” in legal education from 6 to 9 or 15. There are some major, and difficult, questions to address.
A decade ago, the ABA added a requirement that all law schools would be required to include six “experiential” units to their curriculum as a condition for JD graduation. This would expand, perhaps significantly, that requirement.
From the beginning of the new proposal, let me open with this:
We have assumed that the value of experiential education in a professional program has been established through the literature on adult pedagogy and professional education pointing to the activity of using doctrine and skills in context in combination with the exercise of critical perspectives, values, and habits as necessary for professional formation.
Respectfully, this is something of a string of thoughts, opening with an “assumption.” Now the assumption, as it says, has been “established.” But established, how?
One might say, the ABA should examine whether, and how, the six-unit requirement has advanced the ends it was originally designed to achieve. From what I’ve seen, it has not achieved what it was designed to do. Professor Robert Kuehn, for instance, has chronicled how the implementation has been a “whimper,” with good evidence—there have been few substantive changes to curriculum; much occurred by “restructuring” how courses are labeled, something of an accounting issue; state bars have lamented the lack of preparedness of law school graduates; and so on.
Now, Professor Kuehn concludes, “The ABA should heed these calls for reform and revisit the proposals for fifteen-credits of experiential coursework and a mandatory, live-client clinical experience for all J.D. students.” I appreciate his thoughtful perspective (as he was quite involved in these matters a decade ago). But it’s unclear to me that if the evidence of partial implementation has been unsuccessful that a larger implementation would be successful. Now, perhaps part of this is an acknowledgment that schools must be pressed to do something beyond “accounting” or “restructuring” credits, to something quite dramatic. But it remains a surprise to me that this ABA proposal offers no assessment of what has or has not worked in the six-unit model. Instead of evaluating the existing program, it simply assumes that more is better—and, in fact, this assumption doesn’t offer quantity that is valuable, but some sense that more is always better in this context.
So, the “value of experiential education in a professional program has been established.” Established how? “literature on adult pedagogy and professional education.” This is surely right. Now, that said, there are many things that are valuable in professional programs—behavioral theories of a learning environment, or cognitive theories about internal motivation for learners, are also valuable. And this literature, the assumption notes, is “pointing to the activity of using [a] doctrine and skills [b] in context [c] in combination with the exercise of [d] critical perspectives, values, and habits as necessary for professional formation.” I add some subdivisions here. But I think [b] is doing most of the work. I think a lot of doctrine and skill can arise in combination with critical perspective, values, and habits necessary for professional formation. And, again, it offers no evaluation of tradeoff between this and other ways of professional formation.
To recap, then, I have some skepticism of (1) a measure of the efficacy of these programs, particularly in light of the change a decade ago and no evaluation of its success or changes in law schools; and (2) a proposal that something is “valuable” without much if any evaluation of tradeoffs.
To be fair, however, (2) does get some attention later:
However, this support for increasing the number of credits was coupled with concerns about [1a] challenges for part-time and/or evening students to meet an increased number of credits, [2] changes to the curriculum, and [3] financial and [1b] logistical ramifications. The roundtable unearthed concerns about the impact increasing the number of experiential learning credits might have on [4] bar exam performance and [2] the reduction of room for elective courses in a student’s schedule, among other things.
I also subdivided this section, and I think there are two [2]s, and two parts to [1]. I want to focus on a couple of these.
As to [2] I think the concern about changes to the curriculum and reduction of elective courses does get at the tradeoffs.
[3] is a recognition that requiring more experiential courses could come at an added financial cost.
[4] is a recognition that there may be a relationship between course offerings and the bar exam, and some risk that shifting this balance may adversely affect bar exam performance. Professor Kuehn has an important paper on this topic, suggesting the answer is no. At the macro level at these two schools studied under existing standards, it may well be correct. It would be interesting to evaluate how this plays out on a broader scale.
These are, I think, pretty important concerns. And to be fair, some of these questions of tradeoffs and requests for information are a part of a new ABA request for information from schools and stakeholders, per Paul Caron. (See, e.g., “The impact that increasing the number of required experiential credits will have on the ability of students to take elective courses”; “Costs associated with an increase in experiential credits”; and so on.)
But note that none of the questions ask about the existing practices or the adoption of the existing decade-old requirement. Indeed, some of the questions ask for even broader and more dramatic changes. (See, e.g., “Whether the Council should consider requiring a full experiential semester (offered as a single semester) of all law students”; “Whether other types of experiential learning, for example judicial clerkships, should be included within the Standard’s definition of an experiential course,” a change to the status quo.)
It’s disappointing to see such a proposal of potentially radical changes to legal education with no effort to examine the more incremental measure adopted a decade ago that appears, at least implicitly, to have failed to achieve what proponents desired.
One more point, and that’s to heterogeneity. And this point comes in two subpoints.
First, have any other schools adopted similar measures like the ones the ABA is proposing; if they have, have they succeeded in doing what they set out to accomplish; and if they have not, then why are these ideas, which as the original memo points out are “assumed” values, adopted? There are thorny questions to go through, to be sure. If changes aren’t adopted because of stagnant law faculty, that’s one thing. If they weren’t adopted because of systemtic weaknesses in the cost-benefit analysis, that would be worth knowing, too. And if they have been adopted, wouldn’t it be beneficial to know how those experiments have actually played out?
Second, more on experiments. The ABA’s own Task Force on the Future of Legal Education a decade ago posited, “We think legal education would be improved if there were more room for trying different models. . . . The Task Force recommends that participants in the legal education system, but particularly law schools, universities, the Section of Legal Education, the Association of American Law Schools, and state bar admission authorities, pursue or facilitate this increased diversification of law schools as they each develop plans and initiatives to address the current challenges in legal education.” A decade ago, I pointed out the irony of proposals like this juxtaposed with the ABA’s additional new requirements.
Frankly, additional mandates on legal education continue to stifle any innovation or heterogeneity among law schools. And it comes at a time when there’s greater skepticism from the ABA about homogeneity in, say, law schools admissions testing requirements.
But while the ABA seems more willing for heterogeneity in admissions, it seems to want homogeneity on many other things. Over the last couple of years, the ABA’s more recent changes also offer significant new uniform requirements on law schools, including:
Providing “substantial opportunities to students for . . . the development of a professional identity,” and that “students should have frequent opportunities for such development during each year of law school and in a variety of courses and co-curricular and professional development activities.”
Providing “education to law students on bias, cross-cultural competency, and racism: (1) at the start of the program of legal education, and (2) at least once again before graduation.”
Providing “resources related to financial aid and student loan debt and the availability of individual student loan counseling at the law school, the university of which it is a part, or from third party sources”
Providing “information on law student well-being resources,” “informing law students and providing guidance regarding relevant information and services, including assistance on where the information and services can be found or accessed.”
Several things aren’t clear to me. I don’t know how many schools do or don’t do these things. (I’m fairly sure nearly every law school has education on bias, cross-cultural competency, and racism at orientation, and that nearly every law school has information about well-being resources.) It’s not clear what the baseline looks like (e.g., how students currently respond to professional formation), or where it ought to lead (e.g., whether student loan outcomes are “better” in the future with the availability of that information). And each new requirement includes some allocation of law school resources (passed along to students in the form of tuition raises), sometimes new, or sometimes simply in ensuring compliance by developing a record for ABA accreditation purposes.
Undoubtedly, there’s been plenty of praise for the ABA, here and before, for “doing something” in response to actual and perceived problems. But whether it yields any benefits in the future seems impossible to measure.
This proposal to change “experiential” learning, I think, is along the same lines. There’s no baseline comparison or evaluation. There’s no effort to figure out what schools are doing and what works. There’s no articulation of what a successful implementation of the proposal will look like. Instead, it’s some value-laden assumptions and some mandates—but this one (unlike the more recent four proposals) with a direct consequence on the curriculum as a whole.
I look forward to the exchange of information among law schools in the months ahead as the ABA attempts to determine how it ought to proceed. And this is not to say whether these proposals are good or bad. It’s to ask whether there’s enough to suggest they should be placed as a requirement on all law schools without exception in the United States. But I am doubtful that the right questions are being asked to gather the proper information in the first place for us to evaluate without largely falling back on our priors.
