What Should Be Done with Legal Education? (Part IV)

One of the “hot topics” at the 2010 annual meeting of the Association of American Law Schools (AALS) in New Orleans was the topic of “assessment.” The ABA has traditionally approved law schools based on inputs (LSAT/UGPA scores of enrolled students, student-faculty ratio, number of volumes in the library, etc.) rather than on outputs. This in part was a consequence of the already-existing output of the bar exam (though not for Wisconsin). Theoretically, if a school had a poor bar passage rate, it would surely end up going out of business. That hasn’t happened, anywhere. Law schools don’t go out of business; they simply shift to survival mode when necessary. The ABA several years ago added a Standard (these are the criteria used by the ABA in determining whether to approve or re-approve a law school, which permits the graduates of those law schools to take the bar exam in any state) requiring law schools to meet several criteria regarding first-time bar passage rates. However, those criteria were easily avoided. Additionally, the struggle of graduates of historically black law schools with the bar exam made the ABA leery of creating a Standard that might apply in a manner that discriminated in effect even though not in purpose. Now the ABA has a new idea: assessment of outputs other than the bar exam.

Assessment of what law graduates know and what they can do is a good thing. But if history is any judge, it likely will turn out to be bad for both law schools and law graduates. 

The history of the bar exam is an analogous example. Driven by the desire to ensure that graduates of the burgeoning number of law schools in the 1920’s were competent to practice law, the ABA created the National Conference of Bar Examiners (NCBE), a body dedicated to a “scientific” testing of law graduates. That the bar examination then and now does not test for the competencies of lawyers is well known. That the bar exam has been a great tool to limit entry into the profession by minorities (racial, ethnic, and religious) and a tool to restrict competition (during the 1930’s, when the Great Depression was in full swing, the national bar exam passing rate reached fifty percent just once) is less well known.

The current bar exam varies among the states, but most require students to take the Multistate Bar Examination (MBE), a multiple choice exam consisting of 200 questions, divided equally among Constitutional Law, Contracts, Criminal Law, Evidence, Property, and Torts. Some require the Multistate Performance Test (MPT), a “skills” test that largely tests your ability to follow directions, while those that have not adopted the Multistate Essay Examination (MEE) offer their own essay questions, often tested in thirty-minute increments. These multistate exams are all owned by the NCBE, which profits nicely from their use. None of these tests informs the bar of the competency of the would-be lawyer to practice law. They test, in some fashion, the same analytical skills tested in the LSAT and in the first year of law schools, skills that are important but much less important than we think in the practice of law. Following Professor Gary Blasi’s work, two core competencies of lawyers are problem-solving and decision-making, both of which require legal knowledge and analytical ability, but also require judgment (wisdom?) and discernment in listening to a client, other lawyers working with the client, opposing counsel, and the judge, if any.

Although I do not believe the ABA will coerce or force changes in the program of legal education, it will create an environment that will “encourage” law schools to change their program of legal education, which will almost certainly cost a great deal of money (despite the ABA’s disclaimer of any such intention), resulting in even greater increases in tuition. These expenditures of money will almost certainly occur because law schools, especially law school deans, are risk-averse, and will want to avoid a) even the possibility of ABA sanction and b) the possibility of a perceived competitive disadvantage in the competition for desired law students.

One way to address the possibility of reorienting the course of instruction in the law school is to move the bar exam to a test given after the first year of law school. If a student showed sufficient analytical ability in this exam, that student would move to advanced legal studies. A student who failed this examination might move to a parallel track designed to improve their ability to analyze. How those students would “catch up” is unclear, but one possibility might be that the general track would be 2.5 years and the other track three years, keeping the opportunity cost largely the same.

A second way would be to shift to a “clerking” model of six months duration after two years of law school, a clerkship facilitated either by the school or local bar or both. Students would rotate in two or three areas with a likely combination of real and artificial duties given them. This would also require a radical shift in the bar exam as presently constituted.

The assessments drive might also be addressed by a return to a now discouraged option: externships for credit. Two decades ago the ABA cracked down on the granting of credit for student externships, particularly with government agencies and private law firms. These externships were deemed insufficiently valuable to the education of lawyers. In some cases this surely was true. But the idea that credit-worthy externships with judges (some of our students will see the judge for whom they are working no more than twice during the entire semester) were a better educational tool was simply falling into the trap that elevates the work of judges in a very unhealthy way. Requiring students to complete some externship in order to graduate is no panacea to the very difficult problems of creating graduates who are ready to practice law by the time they graduate. And balancing resources devoted to ensuring students can pass the bar exam (which tests numerous subjects beyond the first-year subjects, often in a desultory fashion) with resources devoted to aiding students attain the skills that embody good lawyering (clinics can only do so much given their cost) is a daunting task.

Earlier posts in this series are here (Part III), here (Part II), and here (Part I).

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