Student Choice

August 13th, 2015 / By Deborah J. Merritt

This is the second in a series of posts about California’s proposed changes in bar admission rules. As my first post explains, the proposal will require bar applicants to show that they have completed 15 units of “practice-based, experiential coursework.”

Some law school deans have objected to the proposal on the ground that it will “limit the flexibility and self-determination of individual students in studying law, and in planning diverse careers.” That objection is misguided. The California proposal will increase student options by pressing law schools to teach more of the courses that students want and need.

Diverse Offerings

If the California proposal is adopted, it will allow students to fulfill their practice-based work in any doctrinal field. Schools can design courses focused on tax practice, securities regulation, environmental work, or any other subject that might attract law students. The courses may also teach a wide range of competencies, including but not limited to:

* Oral presentation and advocacy
* Interviewing
* Counseling
* Client service and business development
* Negotiation, mediation, and arbitration
* Other methods of alternative dispute resolution
* Advanced legal research and writing
* Drafting contracts, pleadings, or other legal instruments
* Law practice management
* Use of technology in law practice
* Cultural competency
* Collaboration
* Project management
* Financial analysis (e.g., accounting, budgeting, or valuation)
* Cost benefit analysis in administrative agencies
* Use of technology, data analyses, or predictive coding
* Business strategy and behavior
* Fact investigation
* Pre-trial preparation
* Trial practice
* Professional civility and applied ethics

Those are just some of the non-exclusive possibilities listed by the California report; schools and practitioners undoubtedly will suggest more. Indeed, the deans who object to this proposal have generated several excellent ideas of their own: a course offering hands-on experience with technologies that increase access to justice; one developing new business models and technologies for legal compliance; a practicum on the anatomy of business deals; and collaborations focused on drafting contracts, regulations, or treaties.

Based on my experience in legal education, that’s an exciting list of subjects for law students. The practice-based and experiential courses at my law school tend to fill quickly and generate waiting lists; I suspect the same is true at other schools.

Notice, too, that the competencies described above are not limited to jobs requiring bar admission. California is not going to force every bar applicant to draft a will or file discovery motions. Project management, mediation, cost-benefit analysis, cultural competency, and financial expertise are competencies that many employers seek. The organizations that hire law graduates for “JD Advantage” jobs want a blend of law-related knowledge, analytic abilities, and communication skills. California’s proposal fits that bill.

High Quality Education

In addition to requiring bar applicants to develop practice-based competencies, the California rule will assure that those law graduates experience at least 9 credits of upperlevel education that includes opportunities for individual performance “other than traditional classroom discussion,” individualized feedback from a faculty member, and opportunities for self-evaluation–along with conceptual development. (As explained in my previous post, students can earn 6 of the required practice-based credits in the workplace, so only 9 need be taken on campus.)

Most students are eager for that type of educational experience. They don’t want the “choice” of taking primarily lecture classes in their second and third years of law school. The California proposal will broaden their educational horizons by giving them more choices of both pedagogies and subjects.

I do know one group of students who may not welcome these options. Over the years, I have talked to some high-achieving students who tell me that they shy away from clinics and problem-solving courses because they don’t want to endanger their class rank. These students confide that they’ve mastered the art of excelling on time-pressured exams and know that they will outshine their classmates in that arena. Why risk an A-minus, B-plus (or worse!) by stepping outside their comfort zone?

This attitude, of course, runs counter to our purpose in higher education. Campus should be a place for students to try their wings, explore, and develop new competencies. It’s sad that our educational structure, combined with the hiring policies of many legal employers, dampens this purpose.

California’s proposal will force these students to spread their wings, and I think that’s a good thing. Students should use higher education to expand their excellence, not to preserve a grade point average. Complaints from big law firms and their corporate clients, moreover, suggest that these high-ranking students will benefit from more practice-based, experiential education.

Client Service

For the above reasons, I think most students will cheer the California “requirements” as rules that introduce new options in the law school curriculum. Even if some students don’t want to take practice-based courses, California is right to require them for bar admission. We don’t create law school curricula to make students happy; we design courses to educate lawyers who will serve clients in the best possible manner.

Future lawyers should develop practice-based competencies for the same reason they should take Torts, Contracts, and several other courses: These are foundational elements for law practice. Three years isn’t enough time for students to learn all of the ways to “think like a lawyer,” but they need some foundation in cognitive competencies beyond appellate-style legal reasoning. California’s proposal allows bar applicants to choose the competencies most suited to their ambitions–including goals that lie outside of traditional law practice.

California’s proposal, which seems so restrictive to some law deans, is much less rigorous than the requirements imposed by other professions. Washington University Law School’s Associate Dean Robert Kuehn developed this table (p. 43) comparing educational requirements in eight professions. All of the non-law fields, ranging from medicine to architecture, devote between one-quarter and one-half of their professional curriculum to practice-based or clinical education. The California proposal, in contrast, would absorb about one-sixth of the law school curriculum–and only about one-tenth for students who choose to earn some of their practice-based competencies in the workplace. That’s a pretty modest commitment.

Conclusion

Some law schools are already embracing the benefits of California’s proposed requirements. Jeffrey Baker, Pepperdine’s Director of Clinical Education, notified me that Pepperdine will require all of its law students to complete 15 hours of “practice-based, experiential course work,” starting with the Class of 2017. Pepperdine’s dean, former Chief Judge of the US Court of Appeals for the Tenth Circuit Deannell Reece Tacha, urged her faculty to adopt the requirement.

The California proposal won’t require other schools to change their graduation requirements; the practice-based condition applies only to law graduates who seek admission to the California bar. Some students attend law school without any intention to practice law; they need not satisfy the California rule. Pepperdine’s action, however, confirms my own perspective: requiring 15 credits of practice-based, experiential education–with conceptual development, individual performance, feedback, and self-assessment–is sound educational policy for any law school.