Experiential Learning In Law School

The Bencher—May/June 2018

By Professor Kevin B. Kelly

When I entered law school in 1980, the image of “The Paper Chase” and Professor Kingsfield was still fresh in my mind. First- and second-year courses were primarily large-hall lectures with few opportunities to develop practical skills outside of moot court and a trial advocacy course. Clinical opportunities in the legal aid office were limited. Most of my classmates never saw, much less drafted, a contract or deed. Our experience was not unusual because experiential learning had yet to take hold in law schools.

Fast forward to 1998 when I began teaching in the family law clinic at Seton Hall University School of Law Center for Social Justice. Under my supervision, third-year students represented clients in cases ranging from divorce, domestic violence and adoption, to more complex matters such as international custody disputes. I coached students in client counseling, mediation and negotiation competitions. I also taught a course in mediation, through which students served as mediators in small claims court. The growth of interest in experiential opportunities in alternative dispute resolution led to the formation of the Conflict Management Program, through which students represent clients in mediation and arbitration cases before federal courts and the Financial Industry Regulatory Authority.

Seton Hall students have also taken part in the Last Resort Exoneration Project and the Center for Policy and Research, which produced the widely cited Guantanamo Reports. The list of judges, government agencies, and nonprofits that students intern with is endless. Students can take innovative courses such as “Introduction to the Deal,” “Leadership, Ethics and Decision-Making” and “Crisis Negotiation.” Even professors of doctrinal courses such as contracts and property incorporate role-playing and practical exercises. What has accounted for the changes at law schools around the country from a focus on legal doctrine and research to making legal education more relevant to the legal profession as a whole?

It may come as a surprise that 18th century American law students did not attend classes; rather, they apprenticed as clerks in law offices to learn the law. The growth of law schools in the 19th century, particularly in the East, is often seen as the bridge between apprenticeship legal training and the university-based law degree. However, it was not until 1870 when Professor Christopher Columbus Langdell took over the Dane Professorship of Law at Harvard that legal education took on a systematic and theoretical approach. The case method of study of the common law became the dominant construct to teach law students to “think like lawyers.” With Socratic dialogue, Langdell exhorted his students to move beyond the mere recitation of “black letter law” to greater depths of understanding and analysis of the doctrine extracted from primary legal texts, most frequently from judicial opinions. Though Langdell’s innovations were not initially popular, they have served as the bedrock of legal education for nearly 150 years.

One of the earliest calls for clinical legal education came from the American Legal Realist movement of the 1920s and 1930s, most notably in Jerome Frank’s 1933 article “Why Not a Clinical Lawyer-School?” Frank, Karl Llewelyn and others in the movement contended that law is not found primarily in statutes and legal opinions, but rather in the behavior of judges and other legal officials. They believed that students must learn about the law as a means to an end rather than as an end itself. Thus, the value of clinical legal education lay in its potential to force students out of the artificial world of the law in books and expose them to the complex and variegated world of the law in action. In 1951, Robert Story, then-dean of Southern Methodist University Law School, lauded the clinical method for exposing “the student to actual problems confronting him with actual people who are in actual trouble.” Despite these efforts, only a handful of law schools instituted in-house clinical courses through the first half of the 20th century.

However, clinical growth occurred during the period of social unrest and student activism of the 1960s and 1970s due to widespread student demand and substantial financial support for clinic programs from private foundations. Funding from the Ford Foundation led to the creation of the Council on Legal Education and Professional Responsibility (CLEPR), which emphasized public service aspects of professional responsibility. Within a few years of CLEPR’s formation, nearly half of all law schools in the country had some type of clinical program. However, it became clear that clinics alone could not fulfill the need for experiential learning. For one thing, clinics generally accommodated a small number of students. In addition, by serving the twin systems of public service and professional training, they were seen as specialized laboratories.

In the 1980s, under the leadership of Professor Anthony Amsterdam, New York University School of Law instituted its groundbreaking Lawyering Program, designed to make simulation courses a fundamental part of every student’s legal education. The Lawyering Method identifies the component parts of each lawyering task, engages students in the collaborative performance of that task, then takes student performances as texts for structured, collaborative reflection and critique. Professor Amsterdam served on the American Bar Association (ABA) Task Force on Law Schools and the Profession, also known as the MacCrate Task Force because it was chaired by Robert MacCrate, then-president of the ABA. The purpose of the task force was to study and improve the processes by which new members of the profession are prepared for the practice of law.

In 1992, the ABA released the influential MacCrate Report, which recognized that law teaching no longer revolved around a core curriculum emphasizing legal analysis and research. In simulation courses and live-client clinics, schools were focusing on a range of other practical skills such as factual investigation, interviewing and counseling, negotiation and litigation. At the same time, the report acknowledged that “the skills and values of the competent lawyer are developed along a continuum that starts before law school, reaches its most formative and intensive state during the law school experience and continues throughout a lawyer’s professional career.” The report offered a list of 10 skills and four values that were fundamental to proper training for the practice of law. The MacCrate Report was a momentous call to the legal academy and sparked curricular reform at many law schools, not the least of which was growth in clinical education.

Starting in the late 1990s, the Carnegie Foundation for the Advancement of Teaching undertook a comprehensive study of professional education in various fields. Its report on legal education identified the “three apprenticeships” of legal training: cognitive, practical and ethical-social. The Carnegie Report found that the case method of study effectively inculcated students in the cognitive apprenticeship, namely, teaching them to “think like a lawyer.” The report further found that there was insufficient teaching of doctrine in the context of practice, thus echoing the concerns of the MacCrate Report. However, the Carnegie Report’s primary focus was on the ethical-social apprenticeship, which was viewed as essential to students’ formation of professional identity as a lawyer. The report criticized the typical law school curriculum for its chasm between doctrine and skills and recommended that the three apprenticeships be integrated throughout law school by encouraging greater use of simulation courses and externships in addition to clinics. The basic thrust of the Carnegie Report is that integration of the three apprenticeships of legal training requires experiential learning opportunities.

In 2007 the Clinical Legal Education Association published “Best Practices for Legal Education,” with a forward by MacCrate. The central message in both “Best Practices” and the contemporaneous Carnegie Report was that law schools should broaden the range of lessons they teach, reducing doctrinal instruction that uses the Socratic dialogue and the case method; integrate the teaching of knowledge, skills, and values and not treat them as separate subjects addressed in separate courses; and give much greater attention to instruction in professionalism. “Best Practices” distinguishes experiential courses, such as clinics, from subject-matter courses in which experiential education is a valuable but secondary method of instruction, such as court observations and simulations. However, what all of these courses have in mind is that they place law students in one or more of the many roles that lawyers play in society: litigator, counselor, mediator, legislative lawyer, public policy advocate and so forth.

The 2014–2015 ABA Revised Standards brought “experiential learning” front and center by mandating that law schools establish learning outcomes that prepare students for admission to the bar and for effective, ethical and responsible participation as members of the legal profession. Among the changes was the requirement that students complete at least six credits of experiential learning within a simulation course, clinic or field placement. The revised standards signaled the ABA’s willingness to be guided by the pedagogical approaches championed by the Carnegie Report and “Best Practices,” along with a readiness to incorporate the views of practitioners as to what competencies law schools should be held accountable for teaching.

Today, opportunities abound for students to acquire the skills that will prepare them for professional careers. Virtually every law school offers a variety of simulation-based skills courses, including courses that combine simulation-based teaching with field-placement programs. Students learn how to interview and counsel clients, represent groups, draft legal documents, resolve disputes, examine witnesses and deliver oral arguments. In advanced courses, students carry out business transactions, advise community-based organizations, conduct detailed investigations and even place themselves in the role of legislator. Schools use adjunct professors and guests—in addition to tenured and contract faculty—and courses are frequently offered in an immersive setting. More and more resources are devoted to the curriculum, including extensive use of video recording and professional actors, to create a robust and realistic experience for students. While simulations do not provide all the benefits of dealing with real clients and cases, they offer valuable elements to the law school curriculum.

Field placements are a vital part of the law school experience. Besides gaining credit as interns with courts, government agencies and nonprofit organizations, students earn credit working with in-house counsel to gain exposure to the law of arts and entertainment, media and sports management. Regarding placements with for-profit entities, law schools carefully administer programs that are appropriate and respectful of legal requirements, including the Fair Labor Standards Act, to ensure that unpaid externships provide meaningful education and training for law students.

Finally, clinics remain an essential part of experiential education, particularly as states consider whether to impose pro bono requirements for admission to the bar, as was done in New York. Besides the litigation-based clinics that represent indigent clients in housing, family, criminal and immigration cases, innovative programs have emerged, including those serving veterans, farmworkers, artists, community groups and businesses. There are clinics devoted to animal law, public health, intellectual property and environmental law, to name but a few. Students have the opportunity to serve as neutrals, negotiate business deals, collaborate on proposed legislation, and draft documents such as wills, contracts and tax returns.

Law schools continue to experience pressure from the recent downturn in enrollment and rising tuition. Thus, the recent ABA directive to increase skills training at law schools has been met with skepticism from those who are concerned that experiential education will further drive up costs or result in less rigorous academic standards and lower bar passage rates. In a move to reduce costs, a number of institutions now offer two-year accelerated J.D. programs. Innovative schemes for increasing revenue streams have been adopted at some schools, including online-learning technologies, weekend classes and non-J.D. programs. Amid this changing landscape, experiential education will be an important part of the transition taking place in law schools across the country as it resonates with the increasingly complex needs of society and the expectations of law students.

Professor Kevin B. Kelly is an associate professor with Seton Hall University School of Law, where he currently teaches in the Civil Litigation and Practice Clinic. He serves as counselor and is a member of the Justice Virginia Long Family Law American Inn of Court in Jersey City, New Jersey.

© 2018 Kevin B. Kelly. This article was originally published in the May/June 2018 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the written consent of the American Inns of Court.