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Peter A. Joy
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The Uneasy History of Experiential
Education in U.S. Law Schools
Peter A. Joy*
This article explores the history of legal education, particu-
larly the rise of experiential learning and its importance. In the
early years of legal education in the United States, law schools
devalued the development of practical skills in students, and
many legal educators viewed practical experience in prospective
faculty as a “taint.” This article begins with a brief history of
these early years and how legal education subsequently evolved
with greater involvement of the American Bar Association
(ABA). With involvement of the ABA came a call for greater
uniformity in legal education and guidelines to help law schools
establish criteria for admissions and curricula. This article also
discusses the influence of the ABA Standards, particularly Stan-
dard 302, in legal education. In the latter half of the 20th cen-
tury, it became clear that a legal education without any
professional development or practical training was deficient. A
new ABA task force dedicated to “narrowing the gap” between
practitioners and professors published the MacCrate Report, de-
tailing the skills and values law students should develop before
entering the profession. Lastly, although the ABA Standards
have done a great deal in fixing these deficiencies, there is still
more that law schools must do on their own. This article con-
cludes by providing suggestions for how law schools can improve
legal education in three ways: 1) by making essential lawyering
skills and professional values part of the core curriculum and co-
ordinating the teaching of these lawyering skills and values
through a combination of simulation, clinic, and externship
courses; 2) by providing every law student with a real-life prac-
tice experience in which each student is able to assume the role
* Henry Hitchcock Professor of Law, Washington University in St. Louis School
of Law. This article builds upon some ideas I have explored previously. See Peter
A. Joy, Evolution of ABA Standards Relating to Externships: Steps in the Right
Direction?, 10
C
LINICAL
L. R
EV
. 681 (2004); Peter A. Joy, Law Schools and the
Legal Profession: A Way Forward, 47
A
KRON
L. R
EV
. 177 (2014). I thank Laurel
Terry for suggesting that I write this article, and for her very helpful suggestions to
an initial draft.
551
552 D
ICKINSON
L
AW
R
EVIEW
[Vol. 122:551
of a lawyer; and 3) by developing their curricula to respond to
legal needs for today and the future.
Experiential education in U.S. law schools has an uneasy his-
tory. Until the turn of the 20th century, most people became law-
yers through “only on-the-job legal education,”
1
which was
primarily through an apprenticeship with an experienced lawyer.
2
At its best, the apprentice training involved “close supervision of a
student by his principal in real-life encounters,” but, in reality, “few
apprenticeships worked out that way.”
3
Even the best law offices
rarely had sufficiently diverse practices to offer good, comprehen-
sive training, and as the country matured, there was mounting pres-
sure to improve legal training and to raise the standards of the legal
profession.
4
Aiming to improve the quality of legal education, universities
increasingly began to offer law as a course of academic study start-
ing in the 1870s.
5
By the 1890s, law schools increasingly adopted
the casebook method, which Harvard Law School appropriated and
promoted,
6
as a popular method for preparing students for a career
in law.
7
University administrators favored the casebook method as
1.
R
OBERT
S
TEVENS
, L
AW
S
CHOOL
: L
EGAL
E
DUCATION IN
A
MERICA FROM
THE
1850
STOTHE
1980
S
, 24 (1983).
2. American legal education through the nineteenth century was primarily
conducted through applied skills training in the apprenticeship system, though
some combined on-the-job training either with lectures at proprietary law schools
or with a general education approach to law at universities and colleges. See
Charles R. McManis, The History of First Century American Legal Education: A
Revisionist Perspective, 59
W
ASH
. U. L.Q.
597, 617–18 (1981).
3.
S
TEVENS
, supra note 1, at 24.
4. Id.
5. Id. at 36. After the American Revolution, there were a number of private
proprietary law schools established, such as the Litchfield Law School founded in
Connecticut in 1784. Id. at 3. From the 1820s to 1840, 12 colleges or universities
had affiliated with or developed professional law schools.
A
LFRED
Z. R
EED
,
T
RAINING FOR THE
P
UBLIC
P
ROFESSION OF THE
L
AW
,
152 (1921). Among these
was a law school in Carlisle, Pennsylvania, connected with Dickinson College. Id.
It was not until the 1870s, however, that law started to be fully accepted as a field
of university study.
S
TEVENS
,
supra note 1, at 36.
6. In spite of popular belief, Christopher Columbus Langdell did not originate
the casebook method. He did, however, successfully promote its use while he was
dean of Harvard Law School from 1870–95. See
J
OEL
S
ELIGMAN
,
THE
H
IGH
C
ITA-
DEL
: T
HE
I
NFLUENCE OF
H
ARVARD
L
AW
S
CHOOL
32–42 (1978). Several years
before Langdell introduced the casebook method at Harvard, John Norton Pome-
roy, a professor of the University of New York City (now New York University),
used a case method of instruction. See, e.g.,
S
TEVENS
, supra note 1, at 52 n.14
(describing how other scholars confirm Pomeroy’s use of the case method prior to
Langdell).
7. At first, only some elite law schools adopted the casebook method champi-
oned by Langdell, but other law schools throughout the country soon followed.
2018]
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CHOOLS
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well, in part because it allowed a faculty member to teach a rela-
tively large number of students, which enabled universities to pro-
vide a legal education to students at a relatively low cost.
8
Just as Harvard advanced the casebook method as the struc-
ture for learning law, Harvard also certainly signaled a shift in who
taught law by redefining the qualifications needed to become a law
teacher. In 1873, Harvard Law School appointed James Barr
Ames, who was a recent graduate, as an assistant professor of law.
Christopher Columbus Langdell, Dean of Harvard Law School,
urged Ames’s appointment, stating: “What qualifies a person,
therefore, to teach law, is not experience in the work of a lawyer’s
office, not experience in dealing with men, not experience in the
trial or argument of cases, not experience, in short, in using law, but
experience in learning law.”
9
Until Ames’s appointment, law was
either taught by practicing lawyers and judges for a few hours a
week, or, alternatively, by some lawyers and judges who left prac-
tice after having substantial practice experience to become law
teachers.
10
Ames proved popular with his students, and the presi-
dent of Harvard, Charles William Eliot, predicted that over time,
more law professors would be those “who had never been on the
bench or at the bar.”
11
By 1894, Eliot’s prediction had largely come true at Harvard,
where all eight of the full-time law professors had chosen law teach-
ing over practice, and many other Harvard Law School graduates
were teaching elsewhere.
12
In 1901, “Ames estimated that ‘about
See
S
TEVENS
, supra note 1, at 60–63. “By the beginning of the twentieth century,
then, the case method, although far from unanimously approved, was recognized
as the innovation in legal education.” Id. at 63.
8. Id. Tuition, and tuition hikes, at least in modern times, have less to do with
the costs of providing an education and often more to do with a perception of
quality, and resulting supply and demand. Henry E. Riggs, The Price of Percep-
tion,
N.Y. T
IMES
(Apr. 13, 2011), http://www.nytimes.com/2011/04/17/education/
edlife/edl-17notebook-t.html. Henry Riggs, President Emeritus of Harvey Mudd
College, maintained that higher education tuition is a “marketing, not a cost ac-
counting, decision.” Id. According to Riggs, universities price tuition at or slightly
above the best in an effort to signal higher quality, and “[w]annabes price them-
selves accordingly.” Id. Applying Riggs’s analysis of university tuition pricing to
law schools, Brian Tamanaha agrees with Riggs and maintains: “Law schools have
raised their tuition to obscene levels because they can
.” B
RIAN
Z. T
AMANAHA
,
F
AILING
L
AW
S
CHOOLS
130 (2012).
9.
S
ELIGMAN
, supra note 6, at 37 (quoting Christopher Langdell).
10.
S
TEVENS
, supra note 1, at 38.
11. Id. (citing material in
A
RTHUR
S
UTHERLAND
,
T
HE
L
AW
A
T
H
ARVARD
,
184 (1967)).
12.
B
RUCE
A. K
IMBALL
, T
HE
“T
RUE
P
ROFESSIONAL
I
DEAL
”
IN
A
MERICA
290
(Rowman & Littlefield 1995) (1992).
554 D
ICKINSON
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AW
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EVIEW
[Vol. 122:551
one-fourth of the law professors of this country give themselves
wholly to the duties of their professorships.’”
13
Eliot’s prediction of a law professoriate with little to no prac-
tice experience has essentially come to fruition in the United States.
A study published in 2003 found that new law professors at “top 25
schools” had an average of 1.4 years of legal practice experience,
new law professors at all other schools had 3.8 years of practice
experience, and approximately 15 percent had no legal practice ex-
perience.
14
Indeed, current law professors at Harvard and else-
where often advise law students thinking of entering into law
teaching against gaining law practice experience for fear that “a
taint” may attach to these aspiring law professors.
15
Undoubtedly, both the casebook method, which focuses on an-
alyzing appellate decisions, and law professors, with little or no
practice experience, created conditions in which, from the inception
of university-based legal education in the late 1800s, law schools
devalued experiential education. As a result, law schools did not
typically require any experiential education, such as simulation
courses, in-house clinical courses, or externships
16
until 2010, which
13. Id. (quoting
J
AMES
B. A
MES
,
The Vocation of the Law Professor, in
L
EC-
TURES ON
L
EGAL
H
ISTORY AND
M
ISCELLANEOUS
L
EGAL
E
SSAYS
360, 360–62
(1913)).
In 1929, one lawyer stated that law teaching was “becoming a cloistered
profession, closed to the active practitioner who is frequently regarded with suspi-
cion if not contempt.” Edward T. Lee, In Re The Section of Legal Education and
The American Bar Association: Is the Association to Be Controlled by a Bloc? 14
(1929) (on file with author).
14. Richard E. Redding, “Where Did You Go to Law School?” Gatekeeping
for the Professoriate and Its Implications for Legal Education, 53
J. L
EGAL
E
DUC
.
594, 601 tbl. 3 (2003).
15. See, e.g., David. P. Bryden, Scholarship About Scholarship, 63
U. C
OLO
.
L. R
EV
.
641, 642–43 (1992) (reporting that a graduate of Harvard Law School with
Supreme Court clerk experience stated that several Harvard faculty advised
against gaining practice experience because it would give her “a taint”); Patrick J.
Schlitz, Legal Ethics in Decline: The Elite Law Firm, the Elite Law School, and the
Moral Formation of the Novice Attorney, 82
M
INN
. L. R
EV
. 705, 762 n.225 (1998)
(citing Bryden, supra, at 642–43) (stating that it is the experience of many that “the
Harvard faculty are not alone in considering practical experience as giving a hope-
ful academic ‘a taint’”).
16. Simulation courses put students in role as lawyers using a simulated case
file or part of a case file to perform one or more lawyering tasks on behalf of a
client. See, e.g., Paul S. Ferber, Adult Learning Theory and Simulations – Design-
ing Simulations to Educate Lawyers, 9
C
LINICAL
L. R
EV
. 417, 418–19 (2002)
(describing simulation pedagogy). An in-house clinic is a law office, usually inside
the law school, in which students supervised by faculty provide legal services to
actual clients. Elliott S. Milstein, Clinical Legal Education in the United States: In-
house Clinics, Externships, and Simulations, 51
J. L
EGAL
E
DUC
. 375, 376 (2001).
An externship is a placement external to the law school with a governmental or
nongovernmental office in which the student assists in the provision of legal ser-
vices. Id. Externships are also known as field placements. Today, the American
2018]
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CHOOLS
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was when the American Bar Association (ABA) began requiring
law schools to provide each law student with minimal experiential
education of at least one credit.
17
Even with the current experien-
tial education requirement of one or more courses totaling at least
six credit hours,
18
which was adopted in 2014,
19
legal education is
distinct from other types of professional education that typically re-
quires one quarter to one half of required credits through experien-
tial education.
20
The de-emphasis on experiential education in U.S. law schools
is a curious phenomenon, especially when coupled with the lack of
a practice requirement or clerkship before one is fully qualified to
practice law, as is found in other common law countries such as
Australia, Canada, or the United Kingdom.
21
The historical de-em-
phasis on experiential education in U.S. law schools raises two
questions this article seeks to answer: First, how did legal education
in the U.S. develop from primarily an apprenticeship education to a
law school based education with minimal experiential education re-
quired? Second, how have the experiential education requirements
in U.S. law schools evolved?
This article begins in Part I by analyzing the history of ABA
involvement in legal education leading up to the first mention of
experiential education in ABA accreditation standards. Next, Part
II traces the development of the experiential education require-
ment in the ABA accreditation standards, paying particular atten-
tion to how the experiential education requirement has evolved
from something law schools should offer to something law schools
Bar Association (ABA) defines simulation courses, law clinics, and field place-
ments, for accreditation purposes, as courses. See
A
MERICAN
B
AR
A
SSOCIATION
S
ECTION OF
L
EGAL
E
DUC
. & A
DMISSIONS TO THE
B
AR
, S
TANDARDS AND
R
ULES
OF
P
ROCEDURE FOR
A
PPROVAL OF
L
AW
S
CHOOLS
2017–2018
, Standards 303(a)
and 304 [hereinafter 2017–2018
ABA S
TANDARDS
].
17. See infra notes 137–39 and accompanying text.
18. “A law school shall offer a curriculum that requires each student to satis-
factorily complete at least the following . . . one or more experiential course(s)
totaling at least six credit hours. An experiential course must be a simulation
course, law clinic, or a field placement.” 2017–2018
ABA S
TANDARDS
, supra note
16, at Standard 303(a)(3).
19. See infra notes 151–52 and accompanying text.
20. See, e.g., Peter A. Joy, Law Schools and the Legal Profession: A Way For-
ward, 47
A
KRON
L. R
EV
.
117, 196 (2014) (discussing the more extensive experien-
tial education requirements for other professional schools such as architecture,
medical, pharmacy, social work, education, and veterinary schools).
21. See, e.g., Daniel R. Hansen, Note, Do We Need the Bar Examination? A
Critical Evaluation of The Justifications for the Bar Examination and Proposed Al-
ternatives, 45
C
ASE
W. R
ES
. L. R
EV
. 1191, 1222–28 (1995) (describing the practice
requirement before one becomes fully qualified to practice law in Australia, Ca-
nada, and the United Kingdom).
556 D
ICKINSON
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AW
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EVIEW
[Vol. 122:551
must require. Finally, this article concludes with some suggestions
for the future of experiential education in law schools.
I. A B
RIEF
H
ISTORY OF THE
ABA I
NVOLVEMENT IN
L
EGAL
E
DUCATION
In 1878, around the same time that law schools were gaining
hold in the United States, the ABA was founded.
22
One of the first
seven committees in the ABA Constitution was the Committee on
Legal Education and Admissions to the Bar (“Committee”).
23
At
the first ABA Annual Meeting, the ABA charged the Committee
with recommending “some plan for assimilating throughout the
Union, the requirements for candidates for admission to the bar”
by the second Annual Meeting.
24
At the second Annual Meeting,
the Committee recommended mandatory instruction in 13 fields of
law
25
and completion of a course of law study for three years as
qualifications for examination to be admitted to the bar.
26
After
debate on these and other recommendations, the ABA tabled these
resolutions.
27
Nothing in the recommended course of study ad-
dressed lawyering skills and experiential education.
28
22.
E
DSON
R. S
UNDERLAND
, H
ISTORY OF THE
A
MERICAN
B
AR
A
SSOCIATION
AND
I
TS
W
ORK
3–6 (1953).
23. Id. at 7.
24. 1
A
NN
. R
EP
. A.B.A.
26 (1878).
25. In its 1878 report, the Committee recommended instruction in at least the
following areas:
I. Moral and Political Philosophy.
II. The Elementary and Constitutional Principles of the Municipal Law
of England; and herein: —
1st. Of the Feudal Law.
2d. The Institutes of the Municipal Law generally;
3d. The origin and progress of the Common Law.
III. The Law of Real Rights and Real Remedies.
IV. The Law of Personal Rights and Personal Remedies.
V. The Law of Equity.
VI. The Lex Mercatoria.
VII. The Law of Crimes and their Punishments.
VIII. The Law of Nations.
IX. The Admiralty and Maritime Law.
X. The Civil and Roman Law.
XI. The Constitution and Laws of the United States of America, and
herein the jurisdiction and practice of the Courts of the United States.
XII. Comparative Jurisprudence; and the Constitution and Laws of the
Several States of the Union.
XIII. Political Economy.
2
A
NN
. R
EP
.
A.B.A.
235–36 (1879).
26. See id. at 236.
27. See id. at 14–15.
28. See supra note 25.
2018]
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CHOOLS
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The following year, the Committee amended and resubmitted
its proposals, adding recommendations calling for reciprocity of ad-
mission for lawyers who had practiced at least three years in any
state, state financial support for law schools, and the requirement of
a law school diploma for admission to practice law.
29
The ABA
tabled the resolutions calling for reciprocity of admission, the pre-
scribed course of study, and the requirement for a course of study
consisting of three years.
30
After amending the original proposal,
the ABA adopted a resolution recommending that states should fi-
nancially support law schools.
31
The Committee once again amended and resubmitted the ta-
bled resolutions at the fourth ABA Annual Meeting in 1881, and
the ABA unanimously passed all three resolutions submitted by the
Committee.
32
The adopted resolutions provided for a three-year
course of study in law “under an adequate number of professors,”
that graduation from the three-year course of study and passage of
a bar examination “ought to entitle the recipient to admission to
the Bar as an attorney-at-law,” and “time spent in any chartered
and properly conducted law school, ought to be counted in any
state as equivalent to the same time spent in an attorney’s office in
such state, in computing the period of study prescribed for appli-
cants for admission to the Bar.”
33
By equating the time spent in law
school classrooms with the time required in law office practice ap-
prenticeships, the ABA resolution served to advance law school ed-
ucation over apprenticeship training.
The ABA’s interest in standards for entrance into the legal
profession was directly related to the general attack on the legal
profession that had occurred primarily from 1836–1870.
34
During
this time, there was a movement in many states “admitting every
one freely [to the practice of law] irrespective of education and pro-
29. See 3
A
NN
. R
EP
.
A.B.A.
13–14 (1890).
30. See id. at 14–40.
31. The minutes of the general proceedings do not restate the resolution as
amended, though the minutes provide a copy of the original resolution, the amend-
ment, and a record of the vote on the amended resolution. See id. at 13, 40, 44. By
piecing the action together, the resulting resolution stated: that the several states
and local Bar Associations be respectfully requested to recommend and further
the maintenance of schools of law. See id.
32. See 4
ABA R
EPORTS
28–30 (1881).
33. Id. at 28.
34. Roscoe Pound describes this as “The Era of Decadence,” which he charac-
terized as “The Breakdown of Organization, Education and Professional Train-
ing.”
R
OSCOE
P
OUND
, T
HE
L
AWYER FROM
A
NTIQUITY TO
M
ODERN
T
IMES
223
(1953).
558 D
ICKINSON
L
AW
R
EVIEW
[Vol. 122:551
fessional training.”
35
Some states, such as Maine, New Hampshire,
and Wisconsin, abolished all educational requirements in the
1840s.
36
In 1850, Michigan adopted a constitutional provision
granting litigants the right to choose anyone to represent them, and
Indiana adopted a constitutional amendment granting any person
of “good moral character” the right to practice law in 1850.
37
Opening the practice of law to all served to deprofessionalize the
practice of law, and directly threatened the social and economic
standing of lawyers.
38
The ABA responded by imposing educa-
tional requirements that made entrance into the legal profession
more time-consuming and costly, which in turn shored up the status
of lawyers by restricting entrance to the legal profession.
39
Noticeably, the ABA’s project to tighten bar admission stan-
dards began to bear fruit in the 1880s. The leadership of the ABA
continued to push states to require three years of law school, bar
examinations, and a required apprenticeship, at least part of which
could be replaced by law school.
40
The ABA made progress with
these goals, and 29 of 39 states required some period of formal
study or apprenticeship by 1890.
41
From 1870 to 1890, states also
began adopting the committee system for examining bar applicants,
and written bar examinations started to become the norm.
42
The ABA had established its first section in 1893, which was
the Section of Legal Education (“Section”),
43
and the ABA contin-
ued to focus its efforts on requiring formal legal education for ad-
mission to the bar into the early 1900s.
44
In 1900, the Section
invited delegates from 35 law schools to a meeting, and the dele-
35. Id. at 225.
36. See id. at 231.
37. Id. at 225–26.
38. See id. at 232–33.
39. Requiring at least part of legal training to take place in law school was
part of the effort to raise standards to make lawyers more competent and member-
ship in the legal profession more exclusive. See
S
TEVENS
, supra note 1, at 24.
These new requirements had the effect of excluding many immigrants and their
children from admission to law schools.
R
ICHARD
L. A
BEL
, A
MERICAN
L
AWYERS
,
85 (1989). These barriers were added to those that many universities already had
in place to discriminate against religious and ethnic minorities. Id. Some law
schools continued to refuse admission of persons of color or women well into the
latter half of the 20th century. Id. at 90, 100–01.
40.
S
TEVENS
, supra note 1, at 25.
41. Id.
42. Id.
43.
S
UNDERLAND
, supra note 22, at 74. There is a book about the Section of
Legal Education and Admissions to the Bar.
S
USAN
K. B
OYD
, T
HE
ABA’
S
F
IRST
S
ECTION
: A
SSURING A
Q
UALIFIED
B
AR
(1993).
44.
S
TEVENS
,
supra note 1, at 96–100.
2018]
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XPERIENTIAL
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AW
S
CHOOLS
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gates formed the Association of American Law Schools (AALS).
45
By doing so, the ABA formed an alliance with law schools and law
professors. To become a member of the AALS, a law school was
required to restrict admission to students with a high school or
equivalent education, require ten hours of instruction per week for
at least two years (later raised to three years in 1905), graduate stu-
dents only after they passed an examination, and have a library con-
taining the reports of the state where the school was located and
reports of the U.S. Supreme Court.
46
Although these AALS mem-
bership requirements were not required by the ABA or designed
pursuant to any type of accreditation standards, the membership
requirements encouraged greater conformity among law schools
striving to belong to the AALS and essentially served an accredita-
tion function.
47
During the early 20th century, some in the ABA were clearly
having doubts about whether a law school education without any
experiential or practical experience requirements should be the
principal pathway to becoming a lawyer. At the 1909 ABA Annual
Meeting, a member of the New York Board of Bar Examiners
stated that “his state had made a ‘grievous error’ in allowing stu-
dents to take the bar examination without serving sometime in a
clerkship.”
48
This concern was shared by others, and in 1910, the
Section recommended that students complete a mandatory one-
year clerkship after finishing three years of law school.
49
The Sec-
tion asked the AALS in 1910 and in 1913 to support this resolution,
and the AALS declined.
50
Speaking against the resolution, one law
school dean stated:
If the law schools do not teach the general principles of practice,
that is the fault of the law schools. The student should not be
penalized by another year’s postponement of his getting out in to
the real world, besides which, anyone who has had a personal
experience knows that more practice work can be taught in a law
45. Warren A. Seavey, The Association of American Law Schools in Retro-
spect, 3
J. L
EGAL
E
DUC
. 153, 157 (1950).
46. Id. at 157–58.
47. The AALS has viewed its membership requirements as serving an accred-
itation function. Harry First, Competition in the Legal Education Industry (1),
53
N.Y.U. L. R
EV
. 311, 329 n.93 (1978). The AALS even applied for recognition as
an accrediting agency in 1969, but its request was denied. Id.
48.
S
TEVENS
, supra note 1, at 119–120. In some jurisdictions, such as New
York, the period of apprenticeship was called a clerkship.
49. Id. at 120.
50. Id.
560 D
ICKINSON
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AW
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EVIEW
[Vol. 122:551
school in one winter than can be picked up by the ordinary law
student in a law office in two or three years.
51
As this dean’s remark indicates, at least some legal academics of
that era thought very little of law office practice experience.
As a result of a law school curriculum focused primarily on the
casebook method and law schools in turn devaluing law practice
experience for law faculty, a chasm developed between law schools
and the legal profession. Some critics of this chasm started to speak
out, calling for some practical training. Commenting on law school
education in 1917, William Rowe, an early proponent of clinical le-
gal education, noted how law schools “lagged behind all other pro-
fessions . . . in this matter of providing systematic and experienced
clinical and practical instruction . . . .”
52
In 1921, a Carnegie Foun-
dation for the Advancement of Teaching-funded study of legal edu-
cation echoed the need for practical skills training in law schools by
stating: “The failure of the modern American law school to make
any adequate provision in its curriculum for practical training con-
stitutes a remarkable educational anomaly.”
53
In spite of these calls
for more experiential legal education, legal education became en-
trenched in a decidedly non-experiential mode with few exceptions
until the latter half of the 20th century.
54
In 1917, the same year that Rowe voiced his critique of law
schools, the ABA created the Council of Legal Education and Ad-
mission to the Bar (“Council”), and repealed the bylaw which had
established the Committee of Legal Education and Admission to
the Bar.
55
That same year, and before it was abolished, the Com-
mittee recommended rules for admission to the bar, which included
the requirement of graduation from a law school.
56
The ABA
51. Lucien Hugh Alexander, Standards for Admission to the Bar, 3
A
M
. L.
S
CH
. R
EV
. 462, 477 (1914).
52. William V. Rowe, Legal Clinics and Better Trained Lawyers— A Neces-
sity, 9
I
LL
. L. R
EV
. 591, 596 (1917).
53.
R
EED
,
supra note 5, at 281.
54. See infra notes 64–65 and accompanying text.
55. 40
A
NN
. R
EP
. A.B.A.
90–95 (1917); see also
S
UNDERLAND
, supra note 22,
at 143–44. All of the persons who had been on the Committee were appointed to
the Council. Id. at 144.
56. The proposal stated:
Every applicant should be required to have successfully completed the
prescribed course of instruction and passed the examinations of a law
school, approved by the board, which requires for the completion of its
course not less than three years of resident attendance during the day
time, or not less than four years of resident attendance if a substantial
part or all of the exercises of the school are in the evening.
40
A
NN
. R
EP
. A.B.A
., supra note 55, at
50
. The proposal also required U.S. citi-
zenship and citizenship in the state where the person intended to practice, charac-
2018]
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delayed consideration of the recommended admission rules until
the next ABA meeting.
57
At the 1918 Annual Meeting, the Council
of Legal Education presented rules for admission to practice, in-
cluding the requirement of a bar examination.
58
The Council also
proposed that law schools require at least two years of college for
applicants to be recognized as “first class” law schools.
59
The ABA
delegates voted to adopt both the law school entrance requirement
of at least two years of college and the requirement of a bar exami-
nation for admission to practice.
60
The ABA resumed its push for standards for law schools at the
ABA Annual Meeting in 1921, which was when the ABA adopted a
Council resolution containing four standards for law schools: at
least two years of college study for admission, three years of full-
time or four years of part-time study, an adequate law library, and
sufficient full-time faculty to “ensure actual personal acquaintance
and influence with the whole student body.”
61
None of these stan-
dards addressed the content of the curriculum, and, therefore, none
of the original standards mentioned experiential education as being
necessary for a sound legal education.
In order to determine if law schools were complying with the
standards, the ABA adopted a rule in 1926 requiring the Council to
inspect law schools, which included a personal visit to the law
ter and fitness examinations, various requirements for bar examiners, reciprocity
for admissions to practice in other states, comity for reciprocal admissions, and
other matters regulating technical aspects of bar admissions. See id. at 49–50.
57. Id. at 90–95.
58. See 41
A
NN
. R
EP
. ABA
72–75 (1918). The proposal that law schools re-
quire at least two years of college for applicants essentially functioned as the first
accreditation standard.
59. Id.
60. Id.
61. The ABA adopted the following resolution:
(1) The American Bar Association is of the opinion that every candidate
for admission to the Bar shall give evidence of graduation from a law
school complying with the following standards:
(a) It shall require as a condition of admission at least two years of
study in a college.
(b) It shall require its students to pursue a course of three years’ dura-
tion if they devote substantially all of their working time to their stud-
ies, and a longer course, equivalent in the number of working hours, if
they devote only a part of their working time to their studies.
(c) It shall supply an adequate library available for the use of the
students.
(d) It shall have among its teachers a sufficient number giving their
entire time to the school to insure actual personal acquaintance and
influence upon the whole student body.
44 A
NN
. R
EP
. A.B.A. 38–47 (1921)
.
562 D
ICKINSON
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AW
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EVIEW
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school by a representative of the Council.
62
By 1930, the Council
approved 67 of 80 full-time law schools and only seven of 98 part-
time schools.
63
Although the ABA did not require law schools to offer any
experiential education, this type of education existed. Law students
at several law schools in the late 1890s and early 1900s established
volunteer “legal dispensaries” or legal aid bureaus, which provided
actual practice experience.
64
In addition to Rowe, early proponents
for practical skills training as part of the law school curriculum in-
cluded John Bradway, Jerome Frank, and Karl Llewellyn, who were
active in this area from the 1920s through the 1940s. Bradway pio-
neered law school clinics at the University of Southern California in
1929 and went on to do the same at Duke University starting in
1931.
65
Jerome Frank famously advocated for “clinical law
schools.”
66
Llewellyn was the primary author of a report for the
AALS that stated the “current case-instruction is somehow failing
to do the job of producing reliable professional competence on the
by-product side in half or more of our end-product, our
graduates.”
67
In spite of these isolated efforts to develop experiential educa-
tion and the existing critiques of the casebook method, by the late
62. See
S
UNDERLAND
, supra note 22, at 146–47. The initial recommendation
for the Council to inspect law schools came in 1917, the same year the ABA cre-
ated the Council, but the Council lacked the funding to conduct the law school
inspections.
B
OYD
, supra note 43, at 22.
63.
S
UNDERLAND
,
supra note 22, at 147.
64. In the 1890s and early 1900s, law students established volunteer legal aid
bureaus at law schools such as Cincinnati, University of Denver, George Washing-
ton, Harvard, Minnesota, Northwestern, University of Pennsylvania, University of
Tennessee, and Yale. See John S. Bradway, The Nature of the Legal Aid Clinic, 3 S.
C
AL
. L. R
EV
. 173, 174 (1930); Robert MacCrate, Educating a Changing Profession:
From Clinic to Continuum, 64
T
ENN
. L. R
EV
. 1099, 1102–03 (1997); Rowe, supra
note 52, at 591.
65. John M. Lindsey, John Saeger Bradway—The Tireless Pioneer of Clinical
Education, 4
O
KLA
. C
ITY
U. L. R
EV
. 1, 2 (1979). Bradway also wrote several im-
portant early law review articles about clinical legal education. See generally John
S. Bradway, The Beginning of the Legal Clinic of the University of Southern Cali-
fornia, 2
S. C
AL
. L. R
EV
. 252 (1929); John S. Bradway, The Legal Aid Clinic as an
Educational Device, 7
A
M
. L. S
CH
. R
EV
. 1153 (1934); John S. Bradway, Legal Aid
Clinic as a Law School Course, 3
S. C
AL
. L. R
EV
. 320 (1930); John S. Bradway,
Legal Aid Clinics in Less Thickly Populated Communities, 30
M
ICH
. L. R
EV
. 905
(1932); Bradway, supra note 64; John S. Bradway, The Objectives of Legal Aid
Clinic Work, 24
W
ASH
. U. L. Q.
173 (1939).
66. Jerome Frank, A Plea for Lawyer-Schools, 56
Y
ALE
L.J.
1303 (1947); Je-
rome Frank, Why Not a Clinical-Lawyer School?, 81
U. P
A
. L. R
EV
. 907 (1933).
67. AALS Proceedings 168 (1944), quoted in Stevens, supra note 1, at 214.
2018]
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AW
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1950s, only a small number of law schools had clinical programs,
68
though some law schools experimented with lawyering skills train-
ing primarily through student activities and simulation courses fo-
cusing on various lawyering skills. At many law schools, moot
courts played an important role in providing law students with some
exposure to practice, albeit in a simulated fashion. For example, as
early as the 1890s, moot courts were important at Dickinson School
of Law, where two evenings a week, students prepared briefs and
argued cases.
69
In addition to moot courts, some schools had simu-
lation courses such as trial practice, drafting, or counseling
seminars.
70
The ABA continued a very minimalist approach toward creat-
ing standards for the first part of the 20th century, and law schools
were largely left to define their curricula as they saw fit. The four
standards adopted in 1921 remained in effect, and, in 1929, the
ABA added a fifth standard that provided: “Law schools shall not
be operated as commercial enterprises, and the compensation of
any officer or member of its teaching staff shall not be depend on
the number of students or on the fees received.”
71
In 1938, the
ABA added a sixth standard, which required that an ABA-ap-
proved law school “possesses reasonably adequate facilities and
maintains a sound educational policy.”
72
Eventually, in 1950, the
standard that had previously required two years of acceptable col-
68. Quintin Johnstone identified 28 clinics run by law schools, independent
legal societies, or public defender offices. Quintin Johnstone, Law School Clinics,
3
J. L
EGAL
E
DUC
. 535, 535 (1951).
69. Editorial, About the Moot Court, 1
F
ORUM
121, 121 (1897) (describing the
important role of the moot court at The Dickinson School of Law).
70. Johnstone, supra note 68, at 548–52.
71.
A
LFRED
Z. R
EED
, R
EVIEW OF
L
EGAL
E
DUCATION IN THE
U
NITED
S
TATES AND
C
ANADA FOR THE
Y
EAR
1930
63 n.2 (1931). The standard preventing
for-profit law schools from being accredited was repealed after the U.S. Justice
Department successfully sued the ABA for antitrust violations. Press Release,
Dep’t of Justice, Justice Department and American Bar Association Resolve
Charges that the ABA’s Process for Accrediting Law Schools Was Misused (June
27, 1995), https://www.justice.gov/archive/atr/public/press_releases/1995/0257.htm.
In 1996, the District Court for the District of Columbia entered an order prohibit-
ing the ABA from “adopting or enforcing any Standard, Interpretation or Rule, or
taking any action that has the purpose or effect of prohibiting a law school from
. . . being an institution organized as a for-profit entity.” United States v. Am. Bar
Ass’n, 934 F. Supp. 435, 436 (D.D.C. 1996).
72. 63
A
NN
. R
EP
. A.B.A. 161–63 (1938).
In its entirety, the new standard
provided: “It shall be a school which in the judgment of the Council of Legal
Education and Admissions to the Bar possesses reasonably adequate facilities and
maintains a sound educational policy; provided, however, that any decision by the
Council in these respects shall be subject to review by the House of Delegates on
petition of any school adversely affected.” Id.
564 D
ICKINSON
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AW
R
EVIEW
[Vol. 122:551
lege work for admission to law school was changed to require at
least three years of acceptable college work.
73
By 1940, the ABA started publishing factors related to the
standards to assist the Council and law schools to determine if a law
school met the minimum requirements of the standards.
74
Initially,
the ABA published a list of 15 factors, and two of the factors ad-
dressed teaching methods and the curriculum. The factor address-
ing teaching methods stated that the ABA
does not desire to require any one method of presentation of le-
gal materials . . . [though] it may be said that teaching in ap-
proved schools is based fundamentally but not exclusively on the
case method, and participation by the students in classroom dis-
cussion is a usual and desirable method of stimulating interest
and work.
75
73.
A
MERICAN
B
AR
A
SSOCIATION
S
ECTION OF
L
EGAL
E
DUC
. & A
DMISSIONS
TO THE
B
AR
, S
TANDARDS OF THE
A
MERICAN
B
AR
A
SSOCIATION FOR
L
EGAL
E
DU-
CATION
: F
ACTORS
B
EARING ON THE
A
PPROVAL OF
L
AW
S
CHOOLS
1–2, 2 n.1 (1969)
[hereinafter 1969 ABA
S
TANDARDS AND
F
ACTORS
].
74.
A
MERICAN
B
AR
A
SSOCIATION
S
ECTION OF
L
EGAL
E
DUC
. & A
DMISSIONS
TO THE
B
AR
A
MERICAN
B
AR
, S
TANDARDS OF THE
A
MERICAN
B
AR
A
SSOCIATION
FOR
L
EGAL
E
DUCATION
: F
ACTORS
B
EARING ON THE
A
PPROVAL OF
L
AW
S
CHOOLS
BY THE
A
MERICAN
B
AR
A
SSOCIATION
2–3 (1940).
The Council of Legal Educa-
tion and Admissions to the Bar explained:
In order to fulfill adequately its responsibilities the Council has made a
careful reappraisal of the factors to be taken into consideration in ap-
proving law schools, and for its own guidance and that of schools applying
for approval, it has listed these factors with some explanation where that
is needed. The Standards set forth certain minimum requirements which
must be met in all cases. In addition, the Council has set forth some re-
quirements which it regards as essential. A school which meets these re-
quirements will then be judged in reference to the picture which it
presents as a whole. The general component parts of the picture are
grouped in the following outline under these headings:
1. Connection with a recognized university.
2. Financial condition of the school.
3. Physical plant.
4. Library content and administration.
5. Admission requirements.
6. Administrative and teaching personnel.
7. Teaching methods.
8. Curriculum.
9. Scholarship standards.
10. Degree requirements.
11. Availability and completeness of records.
12. Quality and characteristics of student body.
13. Additional means and methods of law training.
14. Bar examination success of graduates.
15. Administrative policies.
Id.
75. Id. at 10.
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The curriculum factor stated that the ABA “makes no attempt to
dictate the law school curriculum,” and limited its terms to requir-
ing a three-year program of full-time study or its equivalent for
part-time study, the number of weeks of study, and minimum
course loads.
76
A third new factor, under the heading “Additional Means and
Methods of Law Training,” stated that in addition to the regular
courses in the curriculum, some schools “make a definite effort to
bring their students into contact with practicing lawyers during the
period of their law school course.”
77
The factor stated: “What a
school does along these lines may be an important indication as to
its progressiveness,” and it listed the following activities to be in-
quired into: 1) law review, 2) legal aid clinic, 3) law clubs, 4) stu-
dent bar association, 5) student briefing service, 6) part-time law
clerk service to judiciary, 7) sponsorship or apprenticeship system,
and 8) tutorial system.
78
As the list demonstrates, experiential learning opportunities
were among the outside of the classroom “additional means of law
training” identified in the new factor bearing on the approval of law
schools. For example, the “Legal Aid Clinic,” was a reference to
what are now considered in-house and externship clinical pro-
grams,
79
and “Part-time law clerk service to judiciary” most likely
refers to what is similar to a judicial externship program.
By 1969, the list of factors bearing on the approval of law
schools had grown to 20.
80
Three of the factors not in place in 1940
addressed the following procedural issues: mergers of law schools
and law schools opening new divisions, such as a new graduate de-
gree;
81
securing ABA-approval;
82
and removal from the list of ap-
proved law schools.
83
Another newer factor was the need for legal
education in the community, which was expressed as “whether a
genuine need exists for the educational opportunities offered by the
applicant law school.”
84
The final newer factor stressed the desira-
76. Id. at 10–11.
77. Id. at 14.
78. Id.
79. Margaret Martin Barry, Jon C. Dubin & Peter A. Joy, Clinical Education
for this Millennium: The Third Wave, 7
C
LINICAL
L. R
EV
.
1, 7 (2000).
80. 1969 ABA
S
TANDARDS AND
F
ACTORS
, supra note 73, at 3–4.
81. Id. at 19.
82. Id. at 19–20.
83. Id. at 21.
84. Id. at 19. The ABA explained: “It has no desire to encourage new law
schools, or the addition of new part-time or full-time programs by existing law
schools, where present facilities are already adequate to meet the needs of the
foreseeable future.” Id.
566 D
ICKINSON
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[Vol. 122:551
bility of exceeding the minimum requirements set forth in the Stan-
dards and Factors.
85
Thus, none of the newer factors addressed
experiential education.
From 1971 to 1973, the Council of the Section of Legal Educa-
tion and Admissions to the Bar focused more attention on develop-
ing law school accreditation standards.
86
It prepared drafts of new
proposed standards, held public hearings on the proposed stan-
dards, and the ABA House of Delegates adopted a number of more
detailed standards at the 1973 ABA Mid-Year Meeting.
87
During
this 1973 meeting, the ABA adopted a new numbering system for
its 52 standards, which were more than eight times the number of
standards that had been in place since 1938.
88
The 1973 ABA Standards paid much more attention to the ed-
ucational program in law schools,
89
and, for the first time, explicitly
mentioned “professional skills.”
90
The ABA revised Standard
302(a)(iii) to state: “The law school shall offer . . . (iii) training in
professional skills, such as counseling, the drafting of legal docu-
ments and materials, and trial and appellate advocacy.”
91
Attention to professional skills in the ABA Standards came on
the heels of law schools offering more lawyering skills and clinical
courses after the “realization that there were important skills other
than those inculcated by the case method.”
92
So, on the one-hun-
dredth anniversary of Harvard hiring its first full-time professor
85. Id. at 20–21.
86. See Henry Ramsey, Jr., The History, Organization, and Accomplishments
of the American Bar Association Accreditation Process, 30
W
AKE
F
OREST
L. R
EV
.
267, 268 (1995). A drafting committee began working on the new standards in
1969, and the ABA distributed a first draft of the standards to deans, chief justices,
bar examiners, and members of the Section in 1971. See id.
87. Id.
88. See generally
, A
MERICAN
B
AR
A
SSOCIATION
S
ECTION OF
L
EGAL
E
DUC
. &
A
DMISSIONS TO THE
B
AR
, A
PPROVAL OF
L
AW
S
CHOOLS
: A
MERICAN
B
AR
A
SSOCI-
ATION
S
TANDARDS AND
R
ULES OF
P
ROCEDURE
(1973) [hereinafter
1973 ABA
S
TANDARDS
].
89. The 1973 ABA Standards included seven standards addressing issues of
the educational program. Id. at Standards 301–307.
90. The new standard stated, in pertinent part:
(a) The law school shall offer:
(i) instruction in those subjects generally regarded as the core of the
law school curriculum,
(ii) Training in professional skills, such as counseling, the drafting of
legal documents and materials, and trial and appellate advocacy,
(iii) and provide and require for all student candidates for a profes-
sional degree, instruction in the duties and responsibilities of the legal
profession.
Id. at Standard 302.
91. Id. at Standard 302(a)(iii).
92.
S
TEVENS
, supra note 1, at 212.
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with little practice experience, the ABA was stepping in to tell law
schools that they should offer law students courses in lawyering
skills. The next part of this article will examine how the ABA Stan-
dards evolved from the first mention of lawyering skills into the
current experiential course requirement.
II. E
VOLUTION OF THE
E
XPERIENTIAL
E
DUCATION
R
EQUIREMENT IN
U.S. L
AW
S
CHOOLS
A. Including Experiential Courses in the Curriculum
The march from first mentioning professional skills as part of
the law school curriculum to requiring experiential education was a
long journey, and came after critical examinations of legal educa-
tion both at a number of law schools and by the legal profession.
Robert Stevens, a historian of legal education in the United States,
reports that by the late 1960s “[c]oncern with skills training was evi-
dent among an increasing number of schools.”
93
In 1973, former
Chief Justice Warren Burger famously observed that “from one-
third to one-half of the lawyers who appear in the serious cases are
not really qualified to render fully adequate representation.”
94
Burger noted that the “medical profession does not try to teach sur-
gery simply with books.”
95
He called for law schools to expand
their curricula to provide more lawyering skills training, stating:
“The law school . . . is where the groundwork must be laid.”
96
Co-
inciding with the publication of Burger’s remarks in 1973, the ABA
revised the Standards to include references to professional skills in
Standard 302(a)(iii),
97
and, for the first time, the ABA Standards
also explicitly mentioned “clinical work.”
98
93. Id. at 213.
94. Warren E. Burger, The Special Skills of Advocacy: Are Specialized Train-
ing and Certification of Advocates Essential to Our System of Justice?, 42
F
ORD-
HAM
L. R
EV
.
227, 234 (1973).
95. Id. at 232.
96. Id. at 233.
97. The revised Standard 302(a)(iii) stated: “The law school shall offer . . .
(iii) training in professional skills, such as counseling, the drafting of legal docu-
ments and materials, and trail and appellate advocacy.”
1973 ABA S
TANDARDS
,
supra note 88, at Standard 302(a)(iii).
98. The new ABA Standard stated:
(b) The scholastic achievement of students shall be evaluated from the
inception of their studies. As part of the testing of scholastic achieve-
ment, a written examination of suitable length and complexity shall be
required in every course for which credit is given, except clinical work,
courses involving extensive written work such as moot court, practice
court, legal writing and drafting, and seminars and individual research
projects.
Id. at Standard 304(b) (emphasis supplied).
568 D
ICKINSON
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[Vol. 122:551
The references to professional skills and clinical work did not
change in the Standards for several years, but, in 1978, the ABA
published interpretations of the Standards for the first time.
99
Re-
garding training in professional skills, one interpretation provided
“that a law student requesting enrollment in an advocacy course”
need not be guaranteed enrollment, but “merely that the law school
shall offer training in the professional skills.”
100
Another interpre-
tation provided that the decision over which professional skills a
law school offered “is left to the individual schools.”
101
In 1981, there was a slight change in the standard relating to
professional skills. Instead of stating, as Standard 302 had starting
in 1973, that “[t]he law school shall offer . . . (iii) Training in profes-
sional skills, such as counseling, the drafting of legal documents and
materials, and trial and appellate advocacy,”
102
Standard 302 was
changed to state: “The law school shall . . . (iii) offer instruction in
professional skills.”
103
Thus, the revised standard removed refer-
ence to any particular lawyering skills as examples.
The revised Standards in 1981 also included two new interpre-
tations. The first, dated May 1980, stated: “A law school’s failure
to offer adequate training in professional skills, whether through
clinics or otherwise, violates Standard 302(a)(iii).”
104
This signaled
that law schools failing to offer sufficient professional skills courses
would be out of compliance with the ABA Standards. The second
new interpretation, adopted in August 1981, encouraged law
schools “to be creative in developing programs of instruction in
skills,” and noted that “[t]houghtful professional studies have urged
that trial and appellate advocacy, counseling, interviewing, negoti-
ating, and drafting be included in such programs.”
105
99. See Memorandum from James P. White, Consultant on Legal Education
to the American Bar Association, to Deans of ABA Approved Law Schools (Feb.
1, 1978), https://www.americanbar.org/content/dam/aba/publications/misc/le-
gal_education/Standards/standardsarchive/1978_standards.authcheckdam.pdf.
100. Id. at 10.
101. Interpretation 2 of 302(a)(ii) provided, in pertinent part: “This section
requires training in professional skills. To which of the many professional skills the
curriculum with give special attention is left to the individual schools. Therefore, it
is incorrect to say that this Standard requires an approved school to offer a course
in Trial Practice.” Id. at 10.
102.
1973 ABA S
TANDARDS
, supra note 88, at Standard 302(a)(ii).
103.
A
MERICAN
B
AR
A
SSOCIATION
S
ECTION OF
L
EGAL
E
DUC
. & A
DMISSIONS
TO THE
B
AR
, S
TANDARDS AND
R
ULES OF
P
ROCEDURE FOR THE
A
PPROVAL OF
L
AW
S
CHOOLS AND
I
NTERPRETATIONS
, Standard 302(a)(iii) (Aug. 1981) [hereinaf-
ter 1981
ABA S
TANDARDS
].
104. Id. at Interpretation 2 of 302(a)(iii).
105. The two new interpretations provided, in their entirety:
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569
The “thoughtful professional studies” alluded to in this 1981
interpretation were most likely those conducted by some courts and
the ABA. For example, in 1975, the Second Circuit formed a com-
mittee that found “a lack of competency in trial advocacy in the
Federal Courts,” and the committee recommended that law schools
teach trial skills.
106
A committee of the United States Judicial Con-
ference reached similar findings and conclusions in 1979.
107
In
1979, an ABA task force on lawyer competency chimed in, recom-
mending that law schools “should provide all students instruction in
such fundamental skills as: oral communication, interviewing,
counseling, and negotiation. Law Schools should also offer instruc-
tion in litigation skills to all students desiring it.”
108
In the face of these reports, and in light of the ABA’s more
detailed regulation of the content of law school curricula, law
schools expanded their experiential education offerings through
more simulations, clinics, and externships. In a 1974–1975 survey,
109 law schools reported offering 834 courses.
109
Fifteen years
later, in 1990, a survey of 119 law schools found 1,763 courses.
110
While the number of courses offered by 1990 appears impressive,
data from an ABA questionnaire in 1990–1991 showed “that pro-
fessional skills training occupies only nine (9%) percent of the total
Interpretation of 302(a)(iii): A law school’s failure to offer adequate
training in professional skills, whether through clinics or otherwise, vio-
lates Standards 302(a)(iii). May, 1980.
Interpretation of Standard 302(a)(iii): Such instruction need not be
limited to any specific skill or list of skills. Each law school is encouraged
to be creative in developing programs of instruction in skills related to
the various responsibilities which lawyers are called upon to meet, utiliz-
ing the strengths and resources available to the law school.
Thoughtful professional studies have urged that trial and appellate ad-
vocacy, counseling, interviewing, negotiation, and drafting be included in
such programs. August, 1981.
Id. at Interpretation 2 of 302(a)(iii).
106. Final Report of the Advisory Committee on Proposed Rules for Admis-
sion to Practice, 67 F.R.D. 161, 164, 167–78 (1975).
107. See generally Final Report of the Committee to Consider Standards for
Admission to Practice in the Federal Courts to the Judicial Conference of the
United States, 83 F.R.D. 215 (1979).
108.
A
MERICAN
B
AR
A
SSOCIATION
S
ECTION OF
L
EGAL
E
DUC
.
AND
A
DMIS-
SIONS TO THE
B
AR
, R
EPORT AND
R
ECOMMENDATIONS OF THE
T
ASK
F
ORCE ON
L
AWYER
C
OMPETENCY
: T
HE
R
OLE OF THE
L
AW
S
CHOOLS
3–4 (1979).
109.
A
MERICAN
B
AR
A
SSOCIATION
, S
ECTION OF
L
EGAL
E
DUCATION AND
A
DMISSIONS TO THE
B
AR
, L
EGAL
E
DUCATION AND
P
ROFESSIONAL
D
EVELOPMENT
– A
N
E
DUCATIONAL
C
ONTINUUM
, R
EPORT OF THE
T
ASK
F
ORCE ON
L
AW
S
CHOOLS
AND THE
P
ROFESSION
: N
ARROWING THE
G
AP
238 (1992) [hereinafter the
M
AC-
C
RATE
R
EPORT
] (citing the 1974–1975 and 1990–1991 surveys).
110. Id.
570 D
ICKINSON
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AW
R
EVIEW
[Vol. 122:551
instructional time available to law schools.”
111
So, while the 1981
ABA Standards had an impact, legal education was still primarily
non-experiential.
B. Mandating Law Schools to Require Experiential Education
for All Students
From 1981 to 1996, the ABA did not make any changes to the
ABA Standards with respect to experiential education, but the
Council of the Section of Legal Education and Admissions to the
Bar established in 1989 the Task Force on Law Schools and the Pro-
fession: Narrowing the Gap.
112
As the Task Force’s name implied,
there was a sense of a “gap between the teaching and practice seg-
ments of the profession,”
113
and the work of the Task Force was to
examine that perception and the respective roles of law school and
the legal profession in preparing lawyers for the practice of law.
The Task Force surveyed the state of legal education in U.S.
law schools as well as recent law graduates and legal employers,
114
and it published its report, known as the MacCrate Report, in 1992.
In the MacCrate Report, the Task Force developed and published a
set of ten fundamental lawyering skills and four professional val-
ues,
115
which law students would be encouraged to develop both “in
law school courses, extra-curricular activities, and part-time and
summer employment,” and after law school “in postgraduate edu-
cation, continuing legal education, judicial clerkships, and legal
practice.”
116
The MacCrate Report also recommended that “[l]aw
schools should be encouraged to develop or expand” their lawyer-
ing skills offerings and “should stress in their teaching that exami-
nation of the ‘fundamental values of the profession’ is as important
in preparing for professional practice as acquisition of substantive
knowledge.”
117
Importantly, the MacCrate Report urged changes to the ABA
Standards, including amending Standard 301 to require that the law
111. Id. at 241.
112. Id. at xi.
113. Id. at 5.
114. Id. at xi–xii.
115. The ten fundamental lawyering skills are: problem solving, legal analysis
and reasoning, legal research, factual investigation, communication, counseling,
negotiation, litigation and alternative dispute resolution procedures, organization
and management of legal work, and recognizing and resolving ethical dilemmas.
Id. at 138–40. The four fundamental values of the profession are: provision of
competent representation; striving to promote justice, fairness, and morality; striv-
ing to improve the profession; and professional self-development. Id. at 140–41.
116. Id. at 127.
117. Id. at 332.
2018]
E
XPERIENTIAL
E
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AW
S
CHOOLS
571
school’s program of legal education would not only prepare “gradu-
ates for admission to the bar,” but also “prepare them to participate
effectively in the legal profession.”
118
The MacCrate Report also
recommended changes to Standard 302 to clarify its reference to
professional skills.
119
The MacCrate Report spurred a nationwide conversation
about legal education among members of the legal profession.
120
This conversation included 25 state-wide meetings, called “con-
claves,” which were held between 1992 and the early part of 1997,
consisting of judges, practicing lawyers, and legal academics.
121
In
addition to the conclaves, there were numerous conferences, law
review articles, and individual law school faculty discussions about
the MacCrate Report and law school curricula.
122
Some, especially some law school deans, were critical of the
MacCrate Report.
123
Fourteen deans signed a letter opposing the
use of the ABA Standards and the accreditation process to advance
implementation of the MacCrate Report.
124
The deans specifically
opposed “using the accreditation process to push skills training and
clinical legal education.”
125
In spite of this opposition, the MacCrate Report prompted
changes to the ABA Standards that incorporated the MacCrate Re-
118. Id. at 330. The recommendation stated:
Standard 301(a) regarding a law school’s educational program should be
amended to clarify its reference to qualifying ‘graduates for admission to
the bar” by adding: “. . . and to prepare them to participate effectively in
the legal profession.” This would affirm that education in lawyering skills
and professional values is central to the mission of law schools and recog-
nize the current stature of skills and values instruction.
Id.
119.
M
AC
C
RATE
R
EPORT
, supra note 109. The recommendation stated:
In light of developments in skills instruction and the Task Force’s State-
ment of Skills and Values, the interaction between core subjects, treated
in Standard 302(a)(i), and professional skills, treated in Standard
302(a)(iii), should be revisited and clarified. The interpretation of Stan-
dard 302(a)(iii) should expressly recognize that students who expect to
enter practice in a relatively unsupervised practice setting have a special
need for opportunities to obtain skills instruction.
Id.
120. See Russell Engler, The MacCrate Report Turns 10: Assessing Its Impact
and Identifying Gaps We Should Seek to Narrow, 8
C
LINICAL
L. R
EV
. 109, 116–17
(2001).
121. William R. Rakes, Conclaves on Legal Education: Catalyst for Improve-
ment of the Profession, 72
N
OTRE
D
AME
L. R
EV
.
1119, 1129 n.38 (1997).
122. See Engler, supra note 120, at 116–24.
123. Id.
124. Id. at 118.
125. Id.
572 D
ICKINSON
L
AW
R
EVIEW
[Vol. 122:551
port’s recommendations concerning Standards 301 and 302.
126
With regard to Standard 301, the mission of law schools in Standard
301(a) was changed in 1993 from: “The law school shall maintain
an educational program that is designed to qualify its graduates for
admission to the bar,”
127
to “A law school shall maintain an educa-
tional program that is designed to qualify its graduates for admis-
sion to the bar and to prepare them to participate effectively in the
legal profession.”
128
Robert MacCrate, who chaired the Task Force
that produced the MacCrate Report, stated that adopting this
change to Standard 301 was “affirming that education in lawyering
skills and professional values is central to the mission of law schools
and recognizing the current stature of skills and values
instruction.”
129
The MacCrate Report inspired conversations and additional
changes to the Standards. In 1996, Standard 302 was changed sig-
nificantly when it was amended to require that: “A law school shall
offer to all students . . . adequate opportunities for instruction in
professional skills.”
130
Standard 302 was also amended to add the
following: “A law school shall offer live-client or other real-life
practice experiences. This might be accomplished through clinics or
externships. A law school need not offer this experience to all stu-
dents.”
131
The prior version of Standard 302 addressing profes-
sional skills had required that law schools have professional skills
courses but had not required that all students would have adequate
opportunities to enroll in these courses.
132
As a result, these two
changes in the ABA Standards specified that law schools had to
make sufficient opportunities for experiential education for all stu-
126. Mary Lu Bilek, et al., Twenty Years after the MacCrate Report: A Review
of the Current State of the Legal Education Continuum and the Challenges Facing
the Academy, Bar, and Judiciary, 3 (2013), https://www.americanbar.org/content/
dam/aba/administrative/legal_education_and_admissions_to_the_bar/council_re
ports_and_resolutions/june2013councilmeeting/2013_open_session_e_report_prof_
educ_continuum_committee.authcheckdam.pdf. See supra notes 118–19 and ac-
companying text for the specific recommendations of the MacCrate Report.
127. 1981
ABA S
TANDARDS
, supra note 103, at Standard 301(a).
128.
A
MERICAN
B
AR
A
SSOCIATION
, S
TANDARDS FOR
A
PPROVAL OF
L
AW
S
CHOOLS AND
I
NTERPRETATIONS
, Standard 301(a) (1993) [hereinafter 1993 ABA
S
TANDARDS
].
129. Robert MacCrate, Yesterday, Today and Tomorrow: Building the Con-
tinuum of Legal Education and Professional Development, 10
C
LINICAL
L. R
EV
.
805, 819 (2004).
130.
A
MERICAN
B
AR
A
SSOCIATION
S
ECTION OF
L
EGAL
E
DUC
. & A
DMISSIONS
TO THE
B
AR
, S
TANDARDS FOR
A
PPROVAL OF
L
AW
S
CHOOLS AND
I
NTERPRETA-
TIONS
, Standard 302(a)(4) (1996) [hereinafter 1996 ABA
S
TANDARDS
].
131. Id. at Standard 302(d).
132. See supra notes 101–02 and accompanying text.
2018]
E
XPERIENTIAL
E
DUCATION IN
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AW
S
CHOOLS
573
dents, and law schools had to offer clinics, externships, or both. Be-
cause Standard 302 separately required law schools to offer to all
students “at least one rigorous writing experience,”
133
Standard 302
made it clear that law schools had to offer all law students profes-
sional skills instruction beyond one required writing course.
These changes were steps forward toward promoting experien-
tial education for all law students. They fell short, however, by not
requiring law schools to ensure that every student had experiential
courses beyond the required writing course specified in Standard
302.
This changed in 2005 when Standard 302(a) was amended from
a standard requiring that a law school “shall offer” instruction in
professional skills to a standard stating: “A law school shall require
that each student receive substantial instruction in . . . other profes-
sional skills generally regarded as necessary for effective and re-
sponsible participation in the legal profession.”
134
An
interpretation explained that “other professional skills” included
lawyering activities such as interviewing and client counseling, trial
and appellate advocacy, negotiation, alternative dispute resolution,
drafting, factual investigation, and organization and management of
legal work.
135
Thus, 2005 marked the first time that ABA-approved
law schools had to require experiential education beyond legal writ-
ing for every graduate.
Interpretation 302-3 defined how a school could satisfy the re-
quirement by stating:
A school may satisfy this requirement for substantial instruction
in professional skills in various ways, including, for example, re-
quiring students to take one or more courses having substantial
professional skills components. To be “substantial,” instruction
in professional skills must engage each student in skills perform-
ances that are assessed by the instructor.
136
At first reading, Standard 302 and Interpretation 302-2 ap-
peared to require law schools to ensure that every graduate had
meaningful experiential education in lawyering skills while in law
school. A literal reading of “substantial” was not what occurred in
reality among some law school administrators and faculty. In 2010,
133. 1996 ABA
S
TANDARDS
, supra note 130, at Standard 302(a)(3).
134.
A
MERICAN
B
AR
A
SSOCIATION
S
ECTION OF
L
EGAL
E
DUC
. & A
DMISSIONS
TO THE
B
AR
, ABA S
TANDARDS FOR
A
PPROVAL OF
L
AW
S
CHOOLS
, Standard
302(a)(4) (2005–2006) [hereinafter
2005–2006 ABA S
TANDARDS
] (emphasis
added).
135. Id. at Interpretation 302-2.
136. Id. at Interpretation 302-3.
574 D
ICKINSON
L
AW
R
EVIEW
[Vol. 122:551
responding to the difficulty that some law schools were still having
in their attempts to comply with Standard 302(a)(4) five years after
it was adopted, the ABA Consultant on Legal Education issued a
guidance memorandum that “substantial” equaled one credit.
137
The 2010 ABA Consultant on Legal Education Memorandum ex-
plained that “substantial instruction” in professional skills may be
accomplished by requiring at least one credit hour of skills training
where “instruction in (other) professional skills must engage each
student in skills performances that are assessed by the instructor.”
138
The ABA Standards at the time required 83 credits of instruction
for a law degree.
139
By interpreting “substantial” to mean only one
credit of lawyering skills instruction, this interpretation meant that
a law school had to require only 1.2 percent of law school instruc-
tion in these other lawyering skills (which did not include at least
one legal writing course).
It is no wonder that even following the 2005 amendment to
Standard 302, members of the practicing bar, clients, and law stu-
dents believe that new law graduates are ill-equipped to practice
law. A 2009 study found that 90 percent of lawyers and 65 percent
of law students surveyed stated that law schools “do not teach the
practical business skills needed to practice law in today’s econ-
omy.”
140
A 2010 survey by the American Lawyer found that 47
percent of law firms had clients who would not permit first-year or
second-year associates to work on their cases.
141
The general coun-
sel of a technology company has explained that law schools are pro-
ducing “lawyers in the sense that they have law degrees, but they
aren’t ready to be a provider of services.”
142
Given the dissatisfaction with how law schools are preparing
students for the practice of law, some state bar regulators have
started looking at whether they should supplement the ABA Stan-
dards and require more from prospective lawyers while they are in
law school. For example, New York’s high court adopted, as part of
137.
A
MERICAN
B
AR
A
SSOCIATION
C
ONSULTANT ON
L
EGAL
E
DUCATION
,
Consultant’s Memo 3, Standard 302(a), Standard 304, Standard 504, Standard 509
(Mar. 2010), http://www.americanbar.org/content/dam/aba/publications/misc/legal_
education/Standards/2012_2013_aba_standards_and_rules.authcheckdam.pdf.
138. Id.
139.
2005–2006 ABA S
TANDARDS
, supra note 134, at Interpretation 304-4.
140. LEXISNEXIS, State of the Legal Industry Survey 7 (2009), http://
www.managingpartnerforum.org/tasks/sites/mpf/assets/image/MPF%20-%20WEB
SITE%20-%20WHITE%20PAPER%20-%20LN%20State%20of%20the%20Pro
fession%20-%201-12-10.pdf.
141. David Segal, What They Don’t Teach Law Students: Lawyering
, N.Y.
T
IMES
,
Nov. 19, 2011, at A1.
142. Id. (quoting Jeffrey W. Carr, General Counsel of FMC Technologies).
2018]
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XPERIENTIAL
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AW
S
CHOOLS
575
its rules for admission, a requirement that “on or after January 1,
2015, . . . [every applicant] shall complete at least 50 hours of quali-
fying pro bono service prior to filing an application for admis-
sion.”
143
In 2012, the State Bar of California Board of Trustees
appointed the Task Force on Admissions Regulation Reform
(TFARR) to consider whether there should be a pre-admission
practical skills training requirement.
144
TFARR concluded: “[A]
new set of training requirements focusing on competency and pro-
fessionalism should be adopted in California in order to better pre-
pare new lawyers for successful transition into law practice, and
many of these new requirements ought to take effect pre-admission,
prior to the granting of law license.”
145
In October 2013, the Board
of Trustees adopted a TFARR proposal that would require 15 hours
of law school classroom professional skills or practice-based train-
ing prior to bar admission.
146
Other states have also been “critical
of law schools for not preparing students better for the practice of
law,”
147
and some have additional admission requirements.
148
During this period, when legal education was being scrutinized
by clients, regulators, and the practicing bar, the ABA Council of
the Section of the Legal Education and Admissions to the Bar be-
gan a comprehensive review of the ABA Standards that lasted from
2008 to 2014.
149
The Council circulated two proposals concerning
143.
S
TATE OF
N
EW
Y
ORK
, R
ULES OF THE
C
OURT OF
A
PPEALS FOR
A
DMIS-
SION OF
A
TTORNEYS AND
C
OUNSELORS AT
L
AW
, § 520.16 (2012).
144.
A
MERICAN
B
AR
A
SSOCIATION
S
ECTION OF
L
EGAL
E
DUC
. & A
DMISSIONS
TO THE
B
AR
, 2005–2006 ABA S
TANDARDS FOR
A
PPROVAL OF
L
AW
S
CHOOLS
, Ex-
cerpts from State Bar of California Committee Agenda Admissions & Education
Committee, May 2016, at 1, https://www.americanbar.org/content/dam/aba/admin-
istrative/legal_education_and_admissions_to_the_bar/council_reports_and_resolu
tions/August2016CouncilOpenSessionMinutes/2016_california_bar_admissions_re
quirements.authcheckdam.pdf.
145. Id.
146. Id. at 1–2. The proposal was later revised to require six credits of experi-
ential courses to be consistent with ABA Standards adopted in 2014. Id. at 2–3.
147. Joy, supra note 20, at 189. In 2009, the Ohio State Bar Association Task
Force on Legal Education issued a report, and, in 2013, the Illinois State Bar Asso-
ciation Special Committee on the Impact of Law School Debt on the Delivery of
Legal Services issued a report. See id. at 189–93.
148. In addition to graduating from an ABA-approved law school and passing
the bar exam, several states have pre-admission requirements or requirements that
must be fulfilled with one year of bar admission. See
N
ATIONAL
C
ONFERENCE OF
B
AR
E
XAMINERS AND
A
MERICAN
B
AR
A
SSOCIATION
S
ECTION OF
L
EGAL
E
DUC
. &
A
DMISSIONS TO THE
B
AR
,
Comprehensive Guide to Bar Admission Requirements
17–19 (2017).
149.
A
MERICAN
B
AR
A
SSOCIATION
S
ECTION OF
L
EGAL
E
DUC
. & A
DMISSIONS
TO THE
B
AR
, 2008–2014 Comprehensive Review Archive, https://www.american
bar.org/groups/legal_education/committees/standards_review/comp_review_
archive.html.
576 D
ICKINSON
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AW
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[Vol. 122:551
the experiential skills requirement for comments—the first propo-
sal would have increased the professional skills requirement from
one credit to six credits, and the second would have increased the
professional skills requirement from one credit to 15 credits.
150
At the ABA Council meeting in March 2014, the Council ap-
proved the first proposal, thereby requiring six credits in an experi-
ential course or courses.
151
As revised and renumbered, Standard
303(a)(3) stated:
(a) A law school shall offer a curriculum that requires each stu-
dent to satisfactorily complete at least the following: . . . (3) one
or more experiential course(s) totaling at least six credit hours.
An experiential course must be a simulation course, a law clinic,
or a field placement. To satisfy this requirement, a course must
be primarily experiential in nature and must:
(i) integrate doctrine, theory, skills, and legal ethics, and en-
gage students in performance of one or more professional skills
identified in Standard 302;
(ii) develop the concepts underlying the professional skills
being taught;
(iii) provide multiple opportunities for performance; and
(iv) provide opportunities for self-evaluation.
152
The professional skills in Standard 302 that Standard
303(a)(3)(i) refers to are up to each law school to determine,
153
but
those skills have to be professional skills other than those specifi-
cally required by Standard 302, which are: “(a) Knowledge and un-
derstanding of substantive procedural law; (b) Legal analysis and
reasoning, legal research, problem-solving, and written and oral
communication in the legal context; (c) Exercise of proper profes-
150.
A
MERICAN
B
AR
A
SSOCIATION
S
ECTION OF
L
EGAL
E
DUC
. & A
DMISSIONS
TO THE
B
AR
,
Explanation of Changes, https://www.americanbar.org/content/dam/
aba/administrative/legal_education_and_admissions_to_the_bar/council_reports_
and_resolutions/201408_explanation_changes.authcheckdam.pdf.
151. Id.
152.
A
MERICAN
B
AR
A
SSOCIATION
S
ECTION OF
L
EGAL
E
DUC
. & A
DMISSIONS
TO THE
B
AR
, 2014–2015 ABA S
TANDARDS FOR
A
PPROVAL OF
L
AW
S
CHOOLS
,
Standard 303(a)(3) [hereinafter
2014–2015 ABA S
TANDARDS
]
.
153. Standard 302 states: “A law school shall establish learning outcomes that
shall, at a minimum, include competency in the following . . . (d) Other profes-
sional skills needed for competent and ethical participation as a member of the
legal profession.” Id. at Standard 302(d). Interpretation 302-1 explains: “For the
purposes of Standard 302(d), other professional skills are determined by the law
school and may include skills such as, interviewing, counseling, negotiation, fact
development and analysis, trial practice, document drafting, conflict resolution, or-
ganization and management of legal work, collaboration, cultural competency, and
self-evaluation.” Id. at Interpretation 302-1.
2018]
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CHOOLS
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sional and ethical responsibilities to clients and the legal system.”
154
Revised Standard 304 defined simulation courses and law clinics
that can satisfy Standard 303.
155
In order to count, the course must
include: direct supervision of the student by a faculty member, op-
portunities for performance, feedback from a faculty member and
self-evaluation by the student, and a classroom component.
156
In
2010, the definition and requirements for field placements in Stan-
dard 303 were relocated to Standard 305.
157
154. Id. at Standard 302.
155. Id. at Standard 304.
156. Standard 304 defined simulation courses and law clinics as follows:
(a) A simulation course provides substantial experience not involving an
actual client, that (1) is reasonably similar to the experience of a lawyer
advising or representing a client or engaging in other lawyering tasks in a
set of facts and circumstances devised or adopted by a faculty member,
and (2) includes the following:
(i) direct supervision of the student’s performance by the faculty
member;
(ii) opportunities for performance, feedback from a faculty member,
and self-evaluation; and
(iii) a classroom instructional component.
(b) A law clinic provides substantial experience not involving an actual
client, that (1) involves advising or representing one or more actual cli-
ents, and (2) includes the following:
(i) advising or representing a client;
(ii) direct supervision of the student’s performance by a faculty
member;
(ii) opportunities for performance, feedback from a faculty member,
and self-evaluation; and
(iii) a classroom instructional component.
Id.
157. Id. at Standard 305. The definition of a field placement has since been
placed within Standard 304, and is now Standard 304(c).
A
MERICAN
B
AR
A
SSOCI-
ATION
S
ECTION OF
L
EGAL
E
DUC
. & A
DMISSIONS TO THE
B
AR
, S
TANDARDS FOR
A
PPROVAL OF
L
AW
S
CHOOLS
2017–2018,
Standard 304(c) (2017) [hereinafter
2017–2018 ABA S
TANDARDS
]. Today, Standard 304(c) defines a field placement
as follows:
A field placement course provides substantial lawyering experience that
(1) is reasonably similar to the experience of a lawyer advising or repre-
senting a client or engaging in other lawyering tasks in a setting outside
experience that (1) is reasonably similar to the experience of a lawyer
advising or representing a client or engaging in other lawyering tasks in a
setting outside a law clinic under the supervision of a licensed attorney or
an individual otherwise qualified to supervise, and (2) includes the
following:
(i) direct supervision of the student’s performance by a faculty member
or site supervisor;
(ii) opportunities for performance, feedback from either a faculty
member or a site supervisor, and self-evaluation;
(iii) a written understanding among the student, faculty member, and a
person in authority at the field placement that describes both (A) the
substantial lawyering experience and opportunities for performance,
578 D
ICKINSON
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AW
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[Vol. 122:551
In March 2015, the Managing Director for the Section of Legal
Education and Admissions to the Bar issued a Guidance Memo
that discussed Standard 303(a).
158
This memo notes that the Stan-
dard now requires a minimum number of six credits rather than
requiring “substantial instruction,”
159
which had previously been in-
terpreted to mean only one credit.
160
The Guidance Memo also
makes it clear that “[i]nserting skills components in otherwise doc-
trinal courses will not satisfy Standard 303(a)(3),” because the re-
sulting course would not be “primarily experiential in nature,” as
required by the standard.
161
feedback and self-evaluation; and (B) the respective roles of faculty
and any site supervisor in supervising the student and in assuring the
educational quality of the experience for the student, including a
clearly articulated method of evaluating the student’s academic
performance;
(iv) a method for selecting, training, evaluating and communicating
with site supervisors, including regular contact between the faculty and
site supervisors through in-person visits or other methods of communi-
cation that will assure the quality of the student educational experi-
ence. When appropriate, a school may use faculty members from other
law schools to supervise or assist in the supervision or review of a field
placement program;
(v) a classroom instructional component, regularly scheduled tutorials,
or other means of ongoing, contemporaneous, faculty-guided reflec-
tion; and
(vi) evaluation of each student’s educational achievement by a faculty
member.; and
(vii) sufficient control of the student experience to ensure that the re-
quirements of the
Standard are met. The law school must maintain records to document
the steps taken to ensure compliance with the Standard, which shall
include, but is not necessarily limited to, the written understandings
described in Standard 304(c)(iii).
Id.
158.
A
MERICAN
B
AR
A
SSOCIATION
S
ECTION OF
L
EGAL
E
DUC
. & A
DMISSIONS
TO THE
B
AR
,
Managing Director’s Guidance Memo Standards 303(a)(3), 303(b),
and 304 (Mar. 2015), https://www.americanbar.org/content/dam/aba/administrative
/legal_education_and_admissions_to_the_bar/governancedocuments/2015_stand
ards_303_304_experiential_course_requirement_.authcheckdam.pdf [hereinafter
Managing Director’s Guidance Memo Standards 303(a)(3), 303(b), and 304]. In
2013, the position of Consultant on Legal Education was changed to the title of
Managing Director of Accreditation and Legal Education to “reflect[ ] the increas-
ing importance and scope of the section’s regulatory role.”
A
MERICAN
B
AR
A
SSO-
CIATION
S
ECTION OF
L
EGAL
E
DUC
. & A
DMISSIONS TO THE
B
AR
, Barry Currier
Named Managing Director of Accreditation & Legal Education (2013), https://
www.americanbar.org/publications/syllabus_home/volume_44_2012-2013/spring_
2013/barry-currier-named-managing-director-of-accreditation-and-legal.html.
159. Id. at 2.
160. See supra notes 137–38 and accompanying text.
161. Managing Director’s Guidance Memo Standards 303(a)(3), 303(b), and
304, supra note 158, at 4.
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CHOOLS
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The Guidance Memo also explains that a mock trial, moot
court, or similar activity will only count as experiential if it also
meets all of the requirements in Standard 303(1)(3), which means
that a series of required faculty-supervised practices alone would
not be sufficient because this activity would lack the other require-
ments, including a classroom component.
162
Similarly, a course that
requires a traditional scholarly paper would not qualify as a simula-
tion course because “the intent in including simulation courses
within the experiential course definition is to ensure that a simula-
tion course provides experiences similar to those that a student
would be encountering in a clinic or field placement.”
163
To qualify
as experiential, a paper course “must provide ‘substantial experi-
ence . . . reasonably similar to the experience of a lawyer advising or
representing a client a client or engaging in other lawyering tasks.’
A scholarly paper is not ‘reasonably similar’ to a typical experience
of a lawyer advising or representing a client.”
164
The Guidance Memo’s detailed explanation of the experiential
education requirement is likely designed to serve two purposes.
First, it provides clear and explicit guidance about the number of
credits and the content of courses that would or would not meet the
requirement. Second, the explicit guidance will likely prevent some
law schools from designating courses as meeting the requirement
when, in fact, they do not.
It is unfortunate that this type of very explicit requirement and
explanation is necessary, but it recognizes that there is still resis-
tance among some law schools to ensuring that every student re-
ceives more than very minimal experiential education. As
discussed previously, when the ABA Standards required law
schools to provide “substantial instruction” in professional skills,
the standard was interpreted to require only one credit of profes-
sional skills instruction.
165
The current approach specifies the num-
ber of credits and the content of what counts as experiential
courses. The six-credit requirement also addresses the issue of in-
adequate enrollment availability for students wishing to participate
in experiential education courses, as seen under earlier standards.
Still, when it comes to law clinic or externship availability for
law students, the ABA Standards are less definite. Standard 304(b)
simply requires law schools to “provide substantial opportunities to
162. Id. at 4–5.
163. Id. at 5.
164. Id.
165. See supra notes 137–39 and accompanying text.
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students for . . . law clinics or field placement(s),”
166
which “has
allowed five accredited schools to provide their students with no
opportunities to enroll in any law clinic and one school to provide
positions in clinic and externship courses for only ten percent of its
students.”
167
III. C
ONCLUSION
: S
UGGESTIONS FOR THE
F
UTURE OF
E
XPERIENTIAL
E
DUCATION
The current standard that ABA-accredited law schools require
every student to have at least six credits of experiential courses,
defined as simulation, law clinic, or externship courses, is a modest
step toward meaningful experiential education, but it is not enough.
Law schools still have to address three unmet needs for better pre-
paring law students to become lawyers.
First, law schools have to recognize that essential lawyering
skills and professional values must be part of the core curriculum.
Once law faculties embrace this as a foundational principle, then
they should embark on structuring the curriculum in the best way to
ensure that students not only receive instruction in substantive law
and doctrinal analysis, but also essential lawyering skills and profes-
sional values.
168
In doing so, law faculties should also consider the
best way to coordinate the teaching of these lawyering skills and
values through a combination of simulation, clinic, and externship
courses.
Second, law schools have to provide every law student with a
real-life practice experience in which each student is able to assume
the role of a lawyer, which is important for the development of
lawyering skills and professional values.
169
In 2007, a Carnegie
166.
2014–2015 ABA S
TANDARDS
,
supra note 152, at Standard 304(b).
167. Robert R. Kuehn, Universal Clinic Legal Education: Necessary and Fea-
sible, 53
W
ASH
. U. J.L & P
OL
’
Y
89, 90 (2017). Robert Kuehn drew this conclusion
after reviewing data on reports that ABA-approved law schools submitted to the
ABA in 2015. Id.
168. See
M
AC
C
RATE
R
EPORT
, supra note 109 for a list of essential lawyering
skills and professional values stated in the MacCrate Report.
169. Only by being in the role of a lawyer in a clinic or a well-structured
externship is a law student able to develop professional judgment by “applying
legal doctrine, skills, and values in the real world of practice.” Gary S. Laser, Edu-
cating for Professional Competence in the Twenty-First Century: Educational Re-
form at Chicago-Kent College of Law, 68
C
HI
.-K
ENT
L. R
EV
.
243, 250 (1992). Law
students may be in role as student lawyers under the authority of the jurisdiction’s
student practice rule, which permits the student to take primary responsibility for
client representation, including appearing before tribunals on the client’s behalf.
See Peter A. Joy, The Ethics of Law School Clinic Students as Student-Lawyers, 45
S. T
EX
. L. R
EV
. 815, 816 (2004). Not every externship is structured so that law
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CHOOLS
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Foundation study, Educating Lawyers,
170
emphasized “the value of
clinical education as a site for developing not only intellectual un-
derstanding and complex skills of practice but also the dispositions
crucial for legal professionalism.”
171
That same year, Roy Stuckey
and others published Best Practices for Legal Education,
172
which
noted that “it is only in the in-house clinics and some externships
where students’ decisions and actions can have real consequences
and where students’ values and practical wisdom can be tested and
shaped before they begin law practice.”
173
The current ABA Standard, which treats simulations, clinics,
and externships the same in terms of meeting the six credits of ex-
periential course requirement,
174
fails to recognize that each type of
course provides students with different types of learning exper-
iences. Only through clinics and externships structured so that law
students have primary responsibility for client representation can
students grapple with the real-life demands they are going to face as
practitioners.
175
Under the current ABA Standards, a law student
is able to graduate without ever having interacted with a client.
Although not required by the ABA Standards, 40 law schools
do require each student to complete a law clinic or externship
course prior to graduation, and 26 additional law schools guarantee
each student who wants to take a law clinic or externship course
that the student will be able to do so prior to graduation.
176
While
students will have primary—“first chair”—responsibility for client representation.
Id. at 817 n.6.
170.
W
ILLIAM
M. S
ULLIVAN ET AL
., E
DUCATING
L
AWYERS
: P
REPARATION
FOR THE
P
ROFESSION OF
L
AW
(2007).
171. Id. at 120.
172.
R
OY
S
TUCKEY ET AL
., B
EST
P
RACTICES FOR
L
EGAL
E
DUCATION
: A V
I-
SION AND A
R
OAD
M
AP
(2007).
173. Id. at 114.
174. 2017–2018
ABA S
TANDARDS
, supra note 157, at Standard 303(a)(3).
175. Some high credit, carefully designed simulation courses come close to
replicating a real life practice experience. For example, University of Wisconsin
Law School has developed a lawyering skills course that meets for three hours
each afternoon and seeks to expose students to issues that lawyers encounter in
practice—Lawyering Skills Course, University of Wisconsin Law School, https://
perma.cc/HMGV-KQ7T. The law school states that assignments are designed to
“help students learn how to identify and evaluate a client’s legal problems, devise
workable solutions, and translate solutions into actions on behalf of clients.” Id. I
thank Professor Gretchen Viney, Director of Lawyer Skills Program at the Univer-
sity of Wisconsin Law School for bringing this simulation course to my attention.
176. R. Kuehn, Required or Guaranteed Clinical Experience (Oct. 2017) (un-
published list) (on file with author). Penn State Dickinson began to require a law
clinic or externship in 2015. Id. The number of schools requiring a law clinic or
externship or guaranteeing a law clinic or externship has been increasing. In May
2016, Robert Kuehn found that 37 law schools required a law clinic or externship,
582 D
ICKINSON
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EVIEW
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opponents to clinical legal education often claim it is too costly,
177
tuition at law schools adopting “a clinical requirement or guarantee
between 2010 and 2014 show[s] no evidence that these schools
raised their tuition as a result of the new educational opportuni-
ties.”
178
If these 66 law schools have the means either to require or
guarantee a real life lawyering experience to every graduate with-
out affecting the tuition they charge, the remaining law schools
have the means to do so as well.
Third, law schools have to develop their curricula to respond to
legal needs for today and the future. Even those law schools that
require or guarantee a law clinic or externship experience for every
student have to be forward-looking in developing their curricula.
This involves communicating with legal employers about the new
skills lawyers must have. For example, every law school should
have courses on new legal technologies, such as e-discovery and on-
line dispute resolution (ODR), which are in use today. But law
schools will have to do more. In Tomorrow’s Lawyers,
179
Richard
Susskind predicts that the shrinking demand for traditional lawyers
will continue, and that lawyers will have to be able to assume new
roles in the future,
180
including: legal knowledge engineers,
181
legal
technologists,
182
legal process analysts,
183
legal project managers,
184
legal management consultants,
185
and legal risk managers.
186
Law
and another 19 law schools guaranteed each student the opportunity to take a law
clinic or externship. Kuehn, supra note 167, at 96–97.
177. The cost criticism usually focuses on law clinics, or in-house clinical legal
education. See Peter A. Joy, The Cost of Clinical Legal Education, 32 B.C.J.L. &
S
OC
. J
UST
.
309, 309–10 (2012). Law schools have several costly enterprises, and no
one has devised a reliable method to compare the cost of in-house clinics with
other law school expenses. Id. at 328–29. If a cost comparison is done, it “must
take into consideration other law school expenses and the overall objectives of
legal education.” Id. at 329.
178. Kuehn, supra note 167, at 98.
179.
R
ICHARD
S
USSKIND
, T
OMORROW
’
S
L
AWYERS
: A
N
I
NTRODUCTION TO
YOUR
F
UTURE
(2013).
180. See id. at 109.
181. Legal knowledge engineers will be able to “organize and model huge
quantities of complex legal materials and processes.” Id. at 111.
182. Legal technologists will be “experienced and skilled individuals who can
bridge the gap between law and technology.” Id. at 112.
183. Legal process analysts will be “individuals who could undertake reliable,
insightful, rigorous, informed analysis of their [law firm or in-house legal depart-
ment] central legal processes.” Id. at 114.
184. Legal project managers will allocate work to appropriate providers and
ensure that the providers complete their work on time and within budget. Id. at
115.
185. Legal management consultants will be engaged in “strategy consulting
. . . and operational or management consulting (for example, on recruitment, selec-
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schools should be actively developing their curricula to train these
lawyers of tomorrow.
Legal employers, clients, and law students expect that graduat-
ing law school should prepare students for the practice of law.
187
The days when most legal employers provided good training and
mentoring to new lawyers are long gone,
188
and law schools need to
prepare students better for the practice of law.
Law schools have the means to better prepare graduates for
the practice of law through restructuring their curricula, requiring
well-structured law clinics and externships, and developing new
courses to respond to the demands of a changing legal environment.
The time is long overdue for more law schools to become proactive
in adopting a true and substantial commitment to experiential edu-
cation and to a curriculum that prepares graduates for the practice
of law today and tomorrow. The uneasy history of experiential ed-
ucation in law schools suggests that these changes will likely come
slowly at most law schools, however.
tion of law firms, panel management, financial control, internal communications,
and document management).” Id. at 117.
186. Legal risk managers will be individuals whose “focus will be on anticipat-
ing the needs of those they advise, on containing and preempting legal problems.”
Id. at 118.
187. See supra notes 140–42 and accompanying text. See also John Henry
Schlegel, Walt Was Right, 51 J
. L
EGAL
E
DUC
. 599, 608 (2001).
188. Schlegel, supra note 187, at 608.
***
