Experiential Education

July 5th, 2025 / By Deborah J. Merritt

The ABA Council has proposed expanding the number of required experiential credits at ABA-accredited law schools from six to twelve credits. This is a remarkably modest requirement, representing less than 15% of a student’s JD work. The Council’s memo lays out the extensive research supporting this requirement. For decades, empirical scholars, employers, and law graduates have agreed that newly licensed lawyers lack essential competencies needed to serve clients. Law schools must strengthen the education they provide to prepare students for counseling clients effectively, negotiating intelligently, exploring the full context of client matters, and solving complex problems thoughtfully. Claiming that employers will offer that education abdicates our role as educators and puts clients at risk.

Experiential Education Reinforces Doctrinal Learning

As I explained in a comment to the Council, research from cognitive scientists offers further support for the Council’s proposal. Adults struggle to remember doctrinal principles taught in a classroom, even when the classroom instruction includes discussion, problem solving, and “Socratic” questioning. One notable study shows that medical students forget half of what they learn in first year courses by the end of their second year. We are fooling ourselves in legal education when we assume that students retain most of the doctrinal law we teach. We remember it, because we teach it every year, but our students do not.

The answer to this flaw in human memory is experiential education. Medical schools have introduced an increasing amount of experiential work into the first two years of medical school, not only to give students an early start on the skills they will need to treat patients competently, but to improve memory of the principles they learn in anatomy, physiology, and biochemistry. Students need to see why biochemical principles matter–how they inform real-world diagnoses and treatments–before they fully understand and remember those principles.

In law, too many doctrinal professors continue to draw a sharp line between doctrinal education and experiential education–and to claim that gains on one side of the line will cause losses on the other. This is simply not true. Students don’t learn to negotiate, counsel clients, or solve complex problems in a vacuum. They integrate doctrinal principles into every experiential course, whether it is a simulation, clinic, or externship. And when students explore the full context of a client matter, they draw much deeper understanding of the doctrinal principles embedded in that matter.

I saw this clearly one summer when I decided to audit a Trial Practice course taught by one of my colleagues. I had never conducted a trial, and I was curious about what students learn in Trial Practice. Most of the students in the course I audited had completed my Evidence exam just a week before summer classes started–and had done quite well on that exam. Yet in the first week of the Trial Practice class, they were practically helpless. While I mouthed encouraging hints from the jury box, they failed to recognize issues or raise objections.

But by the end of the second week, this had started to change. The students recognized issues, raised objections, and defended evidence with aplomb. They had learned how to apply rules of evidence in the courtroom and, equally important, they had deepened their doctrinal understanding of those rules. From the arguments they made supporting and opposing objections, it was clear that they more fully understood the policies behind and nuances permeating evidentiary rules. Experiential education, in other words, does not detract from doctrinal education–the former enhances the latter.

Can We Wait Until 2035?

Recognizing the weight of evidence supporting greater use of experiential education, many opponents to the ABA proposal plead only for more time. They argue that, given the financial and other pressures that the Trump administration is placing on higher education, the ABA should defer implementation of its proposal until 2035 at the earliest. This suggestion completely misreads the anger that the public (including many of our own graduates) feels towards higher education.

As Professors Claudia Angelos, Catherine Grosso, and Joan Howarth note in their well reasoned comment to the Council: “The lack of priority for experiential education in law schools is a weakness recognized by every major study of legal education of the past thirty years. The need to address the persistent weakness in experiential education has achieved a consensus position across members of bench and bar. . . . [P]rotecting the public by using accreditation standards to ensure that J.D. graduates are well-prepared for the practice of law is exactly the priority that the public demands, even if it comes over the objection of some legal educators.”

More generally, the public is tired of high tuition levels, low teaching loads, and professors who resist changes that will benefit students. The public is even more tired of the lethargic pace of change in higher education. The Council anticipates that its proposal would not take effect until 2030 at the earliest. That gives law schools five years to prepare for a change that was signaled in 2014, when the Council adopted the 6-credit requirement with a “promise to revisit the decision, particularly in light of the significant support for a 12-15 credit requirement at that time.”

Yet a group of deans responding to the Council’s proposal wants to defer implementation to 2035 at the earliest. Ten years! This year’s graduates will be law firm partners and members of Congress by then. Surely five years is more than enough time to implement a modest change that has been foreshadowed for decades–especially since law schools can build on the robust clinical and externship programs that they advertise widely on their websites.

And what happens to all the clients who are poorly served during those 10 years? The ABA Council’s proposal is not an abstract exercise in curriculum design. It is rooted in the need to better serve clients, especially the clients who rely upon public defenders, legal aid lawyers, nonprofits, and small firms. BigLaw firms can afford to complete a new lawyer’s education (although they grumble about it), but other employers cannot. And, yes, students aiming to work for those other employers can elect more experiential classes–but without a stronger requirement, law schools send mixed messages about experiential work.

Moving Fast and Moving Slow

Law schools can move fast, and without extensive research, to make changes they favor. In the early years of this century, law schools hiked tuition dramatically based on the gleeful discovery that, as one dean told me, “the availability of generous loans means that students are not very price sensitive.” No one, to my recollection, conducted studies on how these tuition increases would affect the composition of our student bodies, the career choices our students would make, and the type of debt they would carry long into adulthood. We certainly didn’t take 10 years (or even five) to study and implement these changes.

During the same years, faculties often cut back on their teaching loads. This was accomplished based on quick analyses showing that we would still be able to offer required and high-demand courses, sometimes (or often) with visiting professors. Other electives would be offered less often, but we shrugged that off. It didn’t take 10 years to make and implement those decisions. And if it was acceptable to reduce doctrinal offerings to reduce teaching loads, then why is it such a problem to reduce those courses to accommodate more experiential education?

The Case for Accountability

If law schools cannot regulate themselves to provide the education that students and clients need, then others may step in. The Conference of Chief Justices formed the CLEAR committee two years ago to explore the lack of practice readiness among law graduates and the possibility of reforming bar admission pathways to address that problem. The group will release their report and recommendations after the Conference’s annual meeting in late July.

High courts in numerous states, meanwhile, have been exploring these issues on their own. Professor Carol Chomsky sent the ABA Council a list of competencies that a task force appointed by the Minnesota Supreme Court has created to identify the knowledge and skills that new lawyers need to practice competently. That court, like courts in other states, has signaled a strong interest in licensing paths that develop all the competencies lawyers need.

If the ABA does not act, in other words, state courts may. They may adopt a patchwork of requirements that schools will struggle to track and fulfill. They may allow only two or three years for implementation. Law schools, of course, will be free to ignore those requirements; state courts do not set law school curricula. But state courts do set the requirements for admission to the bar, and law schools will struggle to find students if they don’t provide the courses that state courts require for bar admission.

Turning the Aircraft Carrier

Last year, a colleague from another department observed to our university president that changing course in higher education is like turning an aircraft carrier. The president, who once led the US Naval Academy, responded: “You can turn a Nimitz class aircraft carrier 180 degrees in three and a half minutes.” It’s time to start the engines.

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