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'Experiential' Education Is Not the Solution to the Problems Facing Law Schools

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No one wants to let a crisis go to waste, and the current crisis afflicting many American law schools is no different. As I noted previously, the recession in the legal market, together with better reporting of employment outcomes, has triggered a huge downturn in applications to law schools. Most law schools in the country right now are facing either declining enrollments or finding that they must offer steeper discounts on tuition to enroll the students they want; either way, law schools are under financial stress. This sensible market correction will eventually reach a new equilibrium, perhaps soon.

Unfortunately, everyone with a pet pedagogical agenda recognizes this crisis as their chance to push their "reform." The proposal with the most traction -- an influential committee of the American Bar Association is now considering it -- would require every law student at every ABA-approved law school in the country to complete fifteen credit hours of "experiential learning" courses in order to graduate.

"Experiential learning" courses can include clinical work (where students work under the supervision of faculty in representing real clients), externships (students receive academic credit for work in, say, a judge's chambers), and "simulations" (e.g., students participate in "mock" settlement negotiations. No one disputes the value of experiential learning courses for many, perhaps even most, law students. The only real question before the ABA is whether to require more than another half-year of required coursework after the first year. That is, to put it simply, a terrible idea.

Most law schools already require all the courses for one of the three years of study. Although there is variation in what is and is not required in that first year, almost all law schools require all students to take, in some form or other, the basic private law subjects (contracts, torts, property), substantive criminal law, civil procedure (the rules of court procedure outside the criminal context), and basic legal research and writing.

I have my own doubts about that particular mix of requirements, but I have no doubts that some doctrinal requirements in the first year, along with the crucial legal research and writing, are essential foundations. (I can recall entering practice roughly 25 years ago and finding that the knowledge and skills I needed most often came from first-year contracts, civil procedure, and legal research and writing. My impression, in the form of lots of anecdata, is that my experience was typical.) The first-year requirements, whatever their precise mix, help students learn how to read judicial opinions, teach them core rules that govern our private and public lives, expose them to reasoning by analogy, model and demand some dialectical engagement, and teach them how to research legal questions and write legal memoranda and briefs.

One upshot of the current economic crisis in law schools is that the ABA is considering "deregulation," to permit different schools to experiment with different models of legal education. And this makes considerable sense. Law schools differ, in their student bodies, and also in their employment outcomes. Law students differ in their personal and professional goals and interests. There should be a very strong presumption against any proposal of the form that, "200 law schools, and 40,000 law students all must do X."

Over the last twenty years, I have written letters of recommendation for and advised many students who have gone on to the most competitive federal court clerkships in the United States (including the U.S. Supreme Court). The judges often tell the students they hire in their second year what they expect them to do during their remaining time in law school. Not once have I heard of a federal judge who demanded that the student take more "experiential learning" courses. To the contrary, they want their clerks to take courses on Federal Courts, Administrative Law, Evidence, Criminal Procedure, and Securities Regulation: in other words, they want their students to have deeper and broader knowledge of legal doctrine.

So, too, with the former students who have gone on to the leading private law firms, both the Cravaths and Skaddens, as well as the Bartlit Becks and Susman Godfreys of the world. What these employers want to know is: how smart is this student? how good is her writing? In twenty years, no hiring partner ever asked me, "Why hasn't that student taken more experiential courses?"

Sometimes proponents of experiential learning point to how much of it schools for dentists and veterinarians require. This comparison betrays a profound misunderstanding of the law. Oxford's H.L.A. Hart, the greatest legal philosopher of the last century, noted that you can not understand law and legal systems unless you realize that they centrally involve rules. His critics, like the late legal philosopher Ronald Dworkin, drew attention to the fact that how lawyers reason and argue about rules is just as important. Both Hart and Dworkin highlight the crucial fact about lawyering that distinguishes it from dentistry: law is fundamentally a discursive discipline, dealing in norms, arguments, and reasons. That is why legal education, in both the United States and Europe and every other democracy I am aware of, emphasizes learning legal rules and legal reasoning. One needs a lot of knowledge to be a good dentist, to be sure, but a lot of good dentistry is not a matter of knowing rules and how to reason about them.

Finally, it needs to be said that no law school in the United States is actually equipped to offering "experiential" learning adequate to the full range of careers lawyers pursue. Suppose a student wants to pursue a career in corporate and partnership tax. How many law schools offer meaningful "experiential" learning for that? Perhaps some, but how many could realistically? Suppose a student wants to go into high-stakes corporate takeover litigation. Which law schools offer meaningful experiential litigation to that end? How many could outside of a few major cities? Mandatory experiential learning will force many students into courses that will have no value for their future careers.

If the proponents of "experiential" learning are opportunists seizing a crisis -- as I believe they are -- I do not want to be guilty of the same sin. I have been fortunate to teach fabulous students, and there is no reason every legal education should be designed around them and their employers. But there is also no reason legal education should be designed without regard for them. Forcing most of these students do to fifteen hours of experiential classes would simply deprive them of the class on antitrust or the law and economics of trademarks which they might have taken. Those doing JD/PhDs -- and, yes, they are students too! -- would have had to take classes that would have contributed nothing to their professional development as scholars and teachers.

Individual law schools should be allowed to require fifteen hours of experiential learning if they want, and then let the students (and the employers) choose. There is no reason to mandate that every law school follow suit.