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Thursday Thinkpiece: ABA on Legal Education

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REPORT AND RECOMMENDATIONS AMERICAN BAR ASSOCIATION TASK FORCE ON THE FUTURE OF LEGAL EDUCATION
ABA Task Force on the Future of Legal Education, January 2014

Excerpt: pp. 22-28

VII. THEMES ADDRESSED TO ALL PARTIES

The Task Force has identified the following nine themes as guides for the efforts of all participants in legal education. The project of improving legal education, to deliver both public and private value, will require independent, yet coordinated, initiatives by all participants in the system. The themes can serve as a common framework and a shared set of goals

A. The Financing of Law-Related Education Should Be Re-engineered

The current system for financing law school education harms both students and society.

To begin, there is relatively little scholarship funding or discounting provided to students on the basis of financial need. Rather, the widespread practice is for a school to announce nominal tuition rates and then use extensive discounting to build class profiles it finds desirable. In particular, schools pursue students with high LSAT scores and high GPA’s. Students who do not contribute positively to the desired class profile receive little if any benefit from discounting and must rely extensively on borrowing to finance their education. A result of such practice is that students whose credentials are the weakest incur large debt to subsidize higher- credentialed students and make the school budget whole.

These loans to law students are readily available as part of the federal loan program for students in higher education. This system of lending distances law schools from market considerations and it supports pricing practices that do not well serve either the public or private value in legal education. The system also promotes conditions in which many law school graduates embark upon a career or career search under the cloud of a massive debt obligation.

A positive development in federal law has been the addition of loan forgiveness and income-based repayment opportunities for law graduates. Still, federal law does not take into account the public value in training any lawyer, not just those who enter what is commonly viewed as public service. In general, the recognition in the regulatory framework that law students and legal education are distinctive is very limited.

The Task Force believes that the financing mechanisms for law school education and the pricing practices they facilitate must change, and that continued public confidence in the system of legal education is dependent on that change. However, it would be extraordinarily difficult for individual law schools alone to initiate substantial change in practices because of the entrenchment of the competitive race for credentialed students.

Although many of the specific recommendations in this Report and Recommendations, if adopted, could improve financing and pricing, the Task Force also recognizes the enormous economic and political complexity of the issues. Various observers have submitted testimony or filed comments suggesting everything from an accreditation standard requiring that half of all scholarships be need-based to a cap on the amount students could borrow under current loan programs. Some suggest that Congress treat legal education loans as requiring a different system from that governing other segments of higher education.

The time and resources available to the Task Force have made it impractical to develop a structure of equitable and effective solutions. Accordingly, the Task Force strongly recommends that the American Bar Association undertake a prompt, but fuller examination of these issues, in order to develop comprehensive sets of recommendations to correct the deficiencies in financing and pricing legal education.

B. There Should Be Greater Heterogeneity in Law Schools

While it is an overstatement to say that all ABA-accredited law schools are stamped from the same cookie cutter, accredited law schools in the United States have long been highly uniform. Although the American Bar Association and the Association of American Law Schools were instrumental in bringing about this uniformity, the current Standards for Approval of Law Schools do not so much enforce the common structure as reflect and reinforce it. The structure mirrors what those involved in legal education believe a law school ought to be.

Differentiation of law schools has increased in recent years. Some schools have, for example, added to the basic educational framework an institutional emphasis (real or nominal) in a particular field of law. Some differentiation has been deeper, involving, for example: a commitment to providing opportunity for legal education to those who might otherwise not have it; a pervasive focus on developing trial or other practice skills; or development of integrated systems through branch campuses or consortium arrangements. This trend toward differentiation and experimentation will likely continue and the Task Force believes the American Bar Association, the ABA Section of Legal Education and Admissions to the Bar, and state authorities should energetically promote it.

It is useful to compare the system of law schools with the college and university system in the United States. The latter is marked by a modest degree of standardization (e.g., an undergraduate program, generally of four years) with substantial variety beyond that. Some colleges or universities are highly focused on research; some are highly focused on undergraduate teaching. Some are schools of access; some are highly selective. Some are multi-campus; some are single campus. Some have a high level of distance instruction; some are entirely residential.

This diversity suggests that a system in which law schools with very different missions can be accommodated: including, for example: (1) a school where relatively little time was committed to faculty research and publishing and much more time spent on practice-ready training; or (2) a school where practice-skill courses were regarded as a diversion from the central task of teaching students to “think like lawyers” through emphasis on doctrine-based instruction.

One can acknowledge the success of the prevailing model brought into being by the schools, the ABA, and the wider profession and still believe that it might not be the exclusive way of effectively preparing people to be good lawyers.

The system of legal education would be better with more room for different models. Variety and a culture encouraging variety could facilitate innovation in programs and services; increase educational choices for students; lessen status competition; and aid the adaptation of schools to changing market and other external conditions.

The Task Force recommends that participants in the legal education system, but particularly law schools, universities, the Section of Legal Education, the Association of American Law Schools, and state bar admission authorities, pursue or facilitate this increased diversification of law schools as they each develop plans and initiatives to address the current challenges in legal education.

C. There Should Be Greater Heterogeneity in Programs that Deliver Legal Education

American legal education today is built around a single degree-granting program: the J.D. This is an expensive program that generally requires seven years of higher education. The J.D. program seeks to develop professional generalists, whose services can be costly.

There continues, and will continue, to be a need for professional generalists. However, many people today cannot afford the services of these professional generalists or may not need legal services calling for their degree of training. There is today, and there will increasingly be in the future, a need for: (a) professionals who are qualified to provide limited law-related services without the oversight of a lawyer; (b) a system for licensing or regulating individuals competent to provide such services; and (c) educational programs that train individuals to provide those limited services. The new system for limited license legal technicians developed by Washington State and now being considered by others is an example and a positive contribution.

There is no logical necessity that law schools provide these new educational programs, but there is also no logical reason why they should not do so. The Task Force recommends that law schools and other institutions of higher education develop these educational programs.

The Task Force also recommends, correspondingly: (a) that the Section of Legal Education, in collaboration with state regulators, develop standards for accrediting these educational programs or else expressly defer to other bodies to do so; and (b) that state authorities regulating the practice of law develop licensing or other regulatory systems for the delivery of limited legal services, which assure quality but do not limit access or unduly raise the price of services. As part of ensuring access, state regulators should limit barriers to interstate mobility for providers of such services. Other participants in the legal education system should support this increased heterogeneity of programs and forms of legal service as appropriate to their role in the legal education system.

D. Delivery of Value to Students in Law Schools and in Programs of Legal Education Should Be Emphasized

The traditional emphasis on legal education as delivering public value has led to a focus on quality of legal education as an overriding goal by law schools, the ABA Section of Legal Education, and the Association of American Law Schools. Unquestionably, pursuit of quality has helped create a strong system for educating new lawyers in the United States. But the pursuit has also been a significant source of increasing costs. This tendency has been exacerbated by law school ranking methodologies that uncritically confuse higher cost per student with higher educational quality.

On the other hand, the new emphasis on consumer considerations—and more broadly on legal education as a private good—has had an opposite tendency. The intense consumer focus has created pressure to drive down price. This has been beneficial in the short run. Yet, pressure to uncritically reduce price tends to minimize the impact on student outcomes and on the long-term sustainability and success of the legal education system.

These polar perspectives each represent incomplete pictures of what law schools are and what law schools do. It is inescapable that law schools are in the business of delivering legal education services. And no business can succeed in the long run unless it pays close attention to the value it is promising to deliver and consistently olds itself accountable to deliver that value. Law schools paying closer attention to value and its delivery would not only promote sustainability and accommodate the legitimate concerns of both quality and price; it could help bridge the widespread gaps between academic and business perspectives, and between the concerns of faculty and administration.

The Task Force believes that each law school should make an assessment of the particular value it believes it can and should deliver, and make a commitment to communicating and delivering that value. There is substantial existing literature on which schools can draw to develop a statement of value to be delivered, such as the Carnegie Report and the statement of skills and values in the MacCrate Report.

E. There Should be Clear Recognition that Law Schools Exist to Develop Competencies Relating to the Delivery of Legal and Related Services

Law schools, whatever their individual differences, have a basic societal role: to prepare individuals to provide legal and related services. Much of what the Task Force heard from recent graduates reflects a conviction that they received insufficient development of core competencies that make one an effective lawyer, particularly those relating to representation and service to clients.

The educational programs of a law school should be designed so that graduates will have (a) some competencies in delivering (b) some legal services. A graduate’s having some set of competencies in the delivery of law and related services, and not just some body of knowledge, is an essential outcome for any program of legal education. What particular set of competencies a school, through an educational program, should ensure is a matter for the school to determine. However, a law school’s judgment in this regard should be shaped in reference to: (a) the fact that most students attend law school desiring to practice law; (b) available studies of competencies sought by employers or considered broadly valuable for long-term professional success; and (c) the mission and strengths of the particular school. Further, whatever competencies a particular law school chooses to emphasize, the school should incorporate professionalism education into both doctrinal and experiential instruction.

Although this theme deals with the function of law schools, ensuring the delivery of competencies in graduates is not and cannot be a responsibility of law schools alone. State supreme courts and bar admitting authorities shape legal education, for example, when they decide what to test on bar examinations. Shifting bar examination design toward greater emphasis on assessment of skills and less on adding new substantive subjects would tend to encourage greater reliance on experiential learning in law schools.

In addition, for J.D. programs in particular, it is a responsibility of members of the legal profession as individuals, and through bar associations, firms and other organizations in which legal services are delivered, to support this redirection of legal education by: helping identify competencies to be delivered and continuing to assess their importance; providing teaching resources; providing settings in which students can practice and develop skills and talents; and helping instill in students the culture and professional values that surround and shape the competences of lawyers. The support of lawyers and others in law practice must be fashioned in a way that is mindful of the demands of employment and impact of substantial debt on so many recent graduates.

Writ large, the profession should strive to recapture its former substantial role in the education of new lawyers.

F. There Should Be Greater Innovation in Law Schools and in Programs That Deliver Legal Education

There is need for innovation in legal education and a fair amount of it is under way. Although “innovation” is a malleable concept, at bottom what is needed, and being called for, is: (a) a greater willingness of law schools and others entities which deliver legal education services to experiment and take thoughtful risks; and (b) support for the experiments and risk-taking by other participants in the legal education system.

Innovation cannot come from a directive to experiment and take risks. Nor can it come simply from the removal of real or perceived barriers to innovation. Rather, it must come from a change in attitude and outlook, and from openness to learning, particularly from other fields. With regard to the latter, there exists a wealth of knowledge and experience from other disciplines and fields, on which schools can draw to facilitate their acting in ways that might lead to innovation.

The ABA Section of Legal Education can support innovation by modifying or eliminating Standards (including those governing variances) that constrain opportunities for experimentation and risk-taking. To stimulate and encourage innovation and experimentation, the Section should issue requests for variances, both as to the various Standards that the Task Force has identified and as to education reform more generally.

G. There Should Be Constructive Change in Faculty Culture and Faculty Work

Prevailing law faculty culture, and the prevailing faculty structure in a law school, reflect the model of a law school as primarily an academic enterprise, delivering public value. This entrenched culture and structure has promoted declining classroom teaching loads and a high level of focus on traditional legal scholarship.

Some, perhaps many, law schools will continue to operate under the current model. But for law schools that choose to pursue other models, faculty culture and faculty role may have to change to support them. These changes may relate to: accountability for outcomes; scope of decision-making authority; responsibilities for teaching, internal service, external service, and scholarly work; career expectations; modes of compensation; interdependence; scope of the category “faculty” and internal classifications within that category; and a host of other factors.

The Task Force recommends that universities and law faculties move to reconfigure the faculty role and promote change in faculty culture, so as to support whatever choices law schools make to adapt to the changing environment in legal education. The Task Force further recommends that the Section of Legal Education, the Association of American Law Schools, and other organizations in the legal education system take steps to support the ability of schools and faculties to undertake chosen adaptations. . . .

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