Overregulating Legal Education

Nothing is more important to us at Marquette University Law School than preparing students for the practice of law. Legal education is our mission, and we work every day to serve it. Whether through teaching in fundamental subject areas, responding to new developments in the law, connecting students with the profession, or all of the myriad ways that we encourage the growth of the whole person, student development is our North Star. This is no small project: As all Marquette law students and Marquette lawyers know, the law is ever increasing in its scope and complexity, and the knowledge, skills, and values required for practice are substantial. We would like to do more; the three years we have with students are chock-full.

One way that Marquette Law School contributes to students’ practice readiness is through our program of experiential education, including our workshops, field placements, and clinics. We work hard at these curricular offerings and are proud of our program, including the fact that Marquette law students frequently exceed the current requirement that they take 6 credits of experiential classes.

So I would like to outline why I have submitted comments to our accreditor, at the American Bar Association, vigorously objecting to the proposal to mandate a doubling of the number of experiential-learning credits that each law student would be required to earn. The accreditor has not provided a sufficient reason for mandating such a substantial and costly revision of the upper-level curriculum of law schools—especially considering that the impact on other parts of law schools’ missions could be significant.

Here is an excerpt from the beginning of my letter concerning the revisions that the accreditor has proposed:

. . . . The proposed revisions to the Standards, doubling to 12 the number of experiential-learning credits that each law student must earn and therefore that every law school must provide to every student, should be withdrawn. The basis for this conclusion should not be mistaken. Marquette University Law School shares the widespread view that simulations, clinics, and field placements are valuable in legal education. Indeed, many of our law students routinely exceed the requirements of the current Standards. Marquette Law School works hard at and takes great pride in its experiential program, whose contours and features serve our communities impressively.

Yet the Council’s proposal would mandate a startling redirection of resources. Given the integrated nature of a program of legal education, the proposal would constitute an unprecedented invasion into the upper-level curricula of law schools, diminish substantially the schools’ appropriate autonomy, and impair their ability to innovate and to adapt their programs to local needs and institutional missions—all at a time of other extraordinary pressures on legal education. More succinctly and concretely: The proposal ignores the curricular tradeoffs that will necessarily result for schools and students and dismisses the likely financial costs of the new requirements.

The proposal’s apparent general animating philosophy—which has scant regard for the precept that accreditation standards are intended to establish minimum requirements for “adequate” education while protecting each school’s leading role in defining its own educational program—is regrettable enough. More specifically objectionable is that the proposal to double the current minimum requirement of experiential-learning credits lacks adequate evidentiary support. Valuable though experiential education is, a “more is better” approach to its requirement is not adequately supported in the proposal—notwithstanding the observation that other, very different professions, with different educational pathways, have more experiential education. Given the weak evidentiary basis for increasing the number of mandatory experiential-learning credits, the absence of a rigorous (or really any) cost-benefit analysis should prompt the proposal’s withdrawal..

You can read the entire letter here.

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Looking Forward to the 2025 Jenkins Finals

Statue of Hon. James G. Jenkins
Bust of Judge James G. Jenkins in Eckstein Hall’s Zilber Forum

The Jenkins Honors Moot Court Competition is a spring-semester invitational program for upper-level Marquette law students who have qualified based on their performance in the fall-semester Appellate Writing and Advocacy course. Proceeding in teams of two, students began writing their appellate briefs in January and have now submitted them.

Next up is the Jenkins Competition’s oral arguments. Students argue in multiple preliminary rounds, with the competition going from the original 12 teams to quarterfinal (8 teams), semifinal (4), and final (2) rounds.

We may pause to note that the primary “technical” result may be a single winning team, but along the way all participants will have learned a good deal about appellate advocacy and the law. And that’s the whole point: We denominate it an honors competition partly because of the way one qualifies and partly because there is no academic credit awarded in connection with the competition.

Let’s get back to the oral arguments: The preliminary rounds of this year’s Jenkins Competition are this coming weekend. In addition to joining Professor Love Koenig in wishing the 24 participating students good luck (see her blog post last month noting and naming them), we may peek ahead to next month.

The finals will occur at 6 p.m. on Tuesday, April 15, in the Law School’s Lubar Center. Anyone in the Law School community (very broadly defined) is welcome to register and attend.

It will be a privilege at this year’s Jenkins Finals for Marquette Law School to welcome—and for the two remaining teams to argue before—three distinguished members of the bench:

  • Hon. Paul C. Thissen, Justice, Minnesota Supreme Court
  • Hon. Shelley A. Grogan, L’92, Judge, Wisconsin Court of Appeals
  • Hon. Rachel M. Blise, L’10, Judge, U.S. Bankruptcy Court for the Eastern District of Wisconsin

The competition is named after the Hon. James G. Jenkins. Having retired as a judge of the U.S. Court of Appeals for the Seventh Circuit, Jenkins served as Marquette University Law School’s first dean (1908–1915). You can read about Judge (or, if you prefer, Dean) Jenkins in a blog post by the late Professor J. Gordon Hylton, which provides a good account of the path of a lawyer in Wisconsin from the mid-1800’s to the turn of the century.

I hope to see you at this year’s Jenkins Finals.

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Judge Scudder Discusses “Resorting to Courts” in an Exemplary Hallows Lecture

Honorable Michael Y. ScudderThe Hon. Michael Y. Scudder, judge of the U.S. Court of Appeals for the Seventh Circuit, delivered this year’s Hallows Lecture, yesterday evening, to more than 200 individuals in Eckstein Hall’s Lubar Center. The lecture was exemplary.

The E. Harold Hallows Lecture is an annual highlight at Marquette University Law School. Most often delivered by a judge, the lecture is an opportunity to welcome into our community an accomplished individual from whom all of us interested in the law—students, faculty, other judges, lawyers, and all manner of interested individuals—might learn.

This was not Judge Scudder’s first trip to Marquette Law School, as he presided at the Jenkins Honors Moot Court Finals in 2023 (his similar service in 2021, during the COVID era, having been undertaken remotely by Teams). The judge keeps close to law schools, it would seem—for example, teaching national security law at the University of Chicago Law School and advanced federal jurisdiction at the Northwestern University Pritzker School of Law. Judge Scudder’s interest in legal education, especially in the Seventh Circuit’s region of Wisconsin, Illinois, and Indiana, is impressive and inspiring more generally.

Judge Scudder’s Hallows Lecture was titled “Resorting to Courts: Article III Standing as the Guardian of Free Speech & Democratic Self-Governance.” It proceeds in two main parts.

The first half explains and defends the standing requirement in federal courts. The judge describes the precept’s basis in the “Cases” or “Controversies” requirement of Article III of the Constitution, defends it as a structural limitation on the exercise of judicial power, yet acknowledges the ideological lens through which many individuals seem to view standing issues. The lecture offers a defense of the cases and a strong, institutions-based justification of the concept.

The lecture’s second half explores the relationship between the Case or Controversy requirement and free speech. It emphasizes that the standing requirement—particularly by disfavoring pre-enforcement facial challenges to government policies on very broad grounds—appropriately encourages people to hash out their differences in forums envisioned and intended as policy-setting. This half laments the echo chambers into which many individuals have placed themselves in our society and hopes that more open, respectful, and constructive dialogue, outside of courts, can occur to sort out the “cultural” issues and policies needing resolution at all levels of government.

Here’s a flavor:

. . . . This is how Article III’s limitation on the exercise of judicial power leaves policymaking, and the difficult line drawing it often entails, to the exercise of free speech. Speaking up, objecting, and sharing perspectives with those who differ from us is how we understand, persuade, and, often, find common ground where agreement seems beyond reach.

If that framing is too idealistic in today’s times, I would hope skeptics would at least recognize that the alternative—permitting very difficult legal questions to come to federal court based only on a showing of a genuine worry—casts a vote of little confidence in the role speech can play in finding solutions, or perhaps tolerable compromises, to some of the most divisive questions of our day. And even if these culture war lawsuits should not be viewed as a vote of confidence in federal courts as the ultimate decision makers, they put great pressure on principles of restraint designed to allow democratic processes—whether at the national or local level—to offer answers and outlets for persuasion and compromise in the first instance.

Our constitutional design envisions constitutional answers coming in slower-paced increments than contemplated by pre-enforcement facial challenges like the one Parents Protecting Our Children lodged against the Eau Claire policy. It is not happenstance that the architect who designed the Supreme Court, Cass Gilbert, thought the tortoise an appropriate decorative and symbolic feature for the building’s design. In the same way tortoises move slowly, sometimes the law develops best when principles, doctrines, and answers come with time and, I might add, with more speech and dialogue helping to bridge social divides. Pre-enforcement facial challenges, however, often result in expansive injunctions that apply in one fell swoop—the sort of forward-looking policymaking that is best left to the more democratic branches.

Judge Scudder’s lecture was outstanding, even beyond its timeliness. While versions of it will appear in the fall Marquette Law Review and Marquette Lawyer, one can watch the lecture here or read a working copy of it here.

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