The-Development-of-Legal-Education-in-the-United-States

As a three year course of graduate level study, law remained almost exclusively legal doctrine and theory based, until the late 1960s, when experiential learning courses began to be inco

L EGAL E DUCATION “B EST P RACTICES ” R EPORT , U NITED S TATES

Prepared by Margaret Martin Barry, Jon C Dubin,** and Peter A Joy*** for PILnet

Introduction: Development of Legal Education in the United States

Legal education in the United States was primarily achieved through apprenticeship training and self-study until the end of 18th century Under the apprenticeship model, an individual would associate with a lawyer and work with the lawyer, who would instruct the pupil both about legal doctrine and legal skills necessary to become a lawyer The pupil would also engage in self-study, often copying portions of legal treatises and making extensive notes

At the end of the 18th century, single lawyers or small groups of lawyers began to open proprietary law schools, and would provide lectures to groups of students who sought to become lawyers Students attending the proprietary law schools also usually engaged in some apprenticeship period before becoming lawyers, but the proprietary law schools marked the beginning of law classes or courses in the United States

Although colleges existed in the United States as early as the 17th century, the study of law was not viewed as an academic field until the late 18th and early 19th centuries, when colleges began to hire professors of law and create law departments As law emerged as an academic field, it was based on the European model of that era and stressed a general education with an academic emphasis on law subjects Law was taught much like history or economics, and the study of law focused on legal doctrine and theory Law was an undergraduate field of study, and the professional aspects of law were expected to be pursued after the college or university studies through some apprenticeship training As university-based legal education spread, proprietary law schools began to close their doors

The legal system in the U.S is a common law system, which means that in addition to statutory sources of law there is also the law that is created by court decisions or judgments that address issues that may not codified in statutes By studying legal doctrine, law students learn both the law that appears in statutes and the common law as developed through court decisions

or judgments By studying legal theory, students learn about the nature of law, legal reasoning, legal institutions, and approaches courts use to interpret statutes as well as to develop the common law

Starting with the late 19th and early 20th centuries, more and more individuals sought a university based legal education At this same time, the American Bar Association (ABA), a national association for lawyers in the United States, was founded The ABA supported the requirement of a university legal education as a requirement for the admission to practice law Many jurisdictions in the United States accepted either apprenticeship training or a university-based legal education through this period

Associate Professor of Law, The Catholic University of America, Columbus School of Law.

** Professor of Law, Rutgers School of Law-Newark.

*** Vice Dean and Professor of Law, Washington University in St Louis School of Law.

In the late 1920s and early 1930s, the ABA’s campaign for university-based legal education started to become more successful, as many jurisdictions started to require such legal instruction as a condition to being admitted to practice During this period, the ABA also began

an ultimately successful campaign to make the study of law a graduate level undertaking, which ultimately evolved into a three year course of study

As a graduate level of study, law schools require law students to have an undergraduate degree in some field of study before admission to law school By the late 1950s, law schools also started to require law school applicants to take a standardized admission’s test, and today performance on a standardized test is required Today, the three years of graduate study in U.S law schools continues to have a focus on legal doctrine and legal theory The first year of law school is usually taught by full-time law faculty members, and a majority of the other courses in most law schools are taught by full-time faculty Practicing lawyers and judges also teach some courses on a part-time basis, usually no lawyer or judge will teach more than one course per year, and these part-time law faculty members are called adjunct law faculty members

As a three year course of graduate level study, law remained almost exclusively legal doctrine and theory based, until the late 1960s, when experiential learning courses began to be incorporated into the curricula at most law schools Today, legal education in the United States

is still heavily focused on teaching legal doctrine and legal analysis, though every student receives some instruction in lawyering skills through experiential learning courses

I Main characteristics of the current legal education system in the United States

A Program of Professional Legal Education

Professional legal education in the United States is a graduate level pursuit The juris doctor or juris doctorate (J.D.) is the primary professional degree and is a pre-requisite to licensing for practice as an attorney in most of the United States It is a law degree that originally surfaced in the 1960s, and it was designed to replace, or at least as an alternative to, its academic equivalent, the Bachelor of Laws or LLB degree It gained popularity and for the most part has replaced the LLB since it more accurately reflects the level of training provided in U.S law schools A J.D is also the prerequisite for obtaining a master of laws (LLM), which in turn is a prerequisite for obtaining a doctor of laws (SJD) However, the higher degrees in law are not linked to licensure, and most lawyers do not seek the LLM, and even fewer seek the SJD While all law schools do not offer the LLM or SJD degree, only law schools have the authority

to offer the graduate degrees in law

The J.D is typically a three year program for full-time students and a four year program

in those law schools that also offer a program for part-time or evening students American Bar Association (ABA) Accreditation Standards provide that accredited law schools must require students to complete their course of study in no fewer than twenty-four and no more than eighty-four months

B Access to Legal Education

To enter law school, students are generally expected to have successfully completed a four year undergraduate program and received a Bachelor of Arts (B.A.) or a Bachelor of Science (B.S.) degree There is no specific undergraduate course of study that is recommended

or expected in preparation for the study of law Some students benefit from work experience prior to law school, or receive graduate degrees in other fields prior to entry, but many enter law school in the academic year following completion of their undergraduate degrees In addition to obtaining a bachelor’s degree, most applicants are required to take the Law School Admissions Test (LSAT) and score on the test at the level desired by the admitting institution The LSAT scores, combined with performance in obtaining an undergraduate and any postgraduate degrees, are considered predictive of performance in the first year of law school, and have been relied upon to predict overall success in law school and in bar examinations

The extent of the reliance on the LSAT has been a source of some controversy, as the questions asked have been critiqued for not testing competencies relevant to practice High LSAT scores for entering law students have also been tied to the status of law schools in the rankings of professional schools by a magazine popular for such reporting While the magazine’s rankings are only partially influenced by the LSAT scores, their use in the ranking calculus has had a significant impact on admissions practices and led to distortions in the use of the scores in the admissions process The emphasis on LSAT scores has also conflicted with law school interest in and the accreditation expectation that schools achieve a diverse student body

A particular concern has been the relative stagnation with regard to racial diversity, and the actual decline in enrollment for black and Mexican Americans The reasons are far more complex than use of LSAT scores, but demand for increasingly high scores has had its impact

Several law schools have offered students the opportunity to enter law school after completing three years of undergraduate study, with the chance to combine their first year of law school with completion of undergraduate studies However, this is not a significant number of schools and, when offered, the opportunity is usually limited to students within the same university

Of the 210 ABA-approved (accredited) law schools in the United States, approximately

75 are public law schools, which means that they are funded primarily by state or local governments Students at these public law schools pay tuition, although if they resident in the jurisdiction their tuition is significantly reduced Lower taxes and the impact of the economic downturn have caused many of these institutions to raise tuition, seek increased private funding and cut back on expenditures Private law schools are primarily funded by tuition, philanthropy and grants Law schools seek grants from both private and public sources including private foundations and various government programs that support research, educational or public service initiatives For example, law schools have sought support for clinical legal education programs from major private foundations such as the Ford Foundation, from federal government agencies such as the United States Department of Education, the Legal Services Corporation and the Internal Revenue Service, and from a variety of state supported agencies including those established based on a program that utilizes the proceeds from interest on lawyers’ trust accounts

in banks that has been made available to support legal services for the poor In addition, law schools solicit donations from law school graduates to help pay for the cost of legal education

As law shifted from an apprenticeship model to a law school model, it became easier for students from lower income families to acquire a legal education A law student no longer had

to know a lawyer who would accept the student as an apprentice, which often was a barrier for students from lower income, racial minority, and lower social status families Barriers still remained due to discriminatory law school admissions policies based on race, gender, religious beliefs, and national origin for a large part of the 20th century, though these barriers started to fall due to changing societal views, the growing recognition that equal protection guaranteed by the U.S Constitution prohibited such discrimination, and because of anti-discrimination laws

The first beneficiaries of more open access to legal education due to changing societal views were immigrants to the U.S from European countries starting in the 1920s Women also started to be admitted, initially in small numbers, through the first half of the 20th century Racial minorities were also admitted, either in small numbers, or to law schools that were created especially to assist them in gaining entrance to the legal profession Starting in the late 1950s and through the early 1970s, a series of successful challenges to discriminatory admission policies led to greater access for women and racial minorities Today, cost has become a major barrier as other discriminatory barriers are legally prohibited

There has been strong criticism of law schools for the rapidly rising costs of legal education Many fear that students from lower income families are being prevented from pursuing a law school education While a legal education has been a gateway for social mobility for over 100 years, that gateway has become more limited due to the increasing costs of legal education Even before recent economic problems, the rising cost of legal education was making

it harder for lower income students to become lawyers In order to understand this cost critique

of legal education, and how it may be affecting social mobility, a brief description of the rising costs of legal education is necessary

In 1990, private law school tuition averaged $11,000, about three times more than the approximately $3,500 average tuition at a public (state supported) law schools Throughout the 1990s and early 2000s, law school tuition at both private and public law schools rose at rates that sometime exceeded 10 per cent per year Since the economic downturn in 2008, most law schools have continued to increase tuition between 3 to 5 per cent per year, even though the cost

of living in the U.S has remained flat As a result, the average tuition at private law schools is approximately $40,000 per year and average tuition at public (state supported) law schools is approximately $20,000 per year

Due to the high cost of legal education, close to 80 percent of law students take out loans

to fund their legal education The average law school education debt load is approximately

$90,000 Students who have taken out loans for their undergraduate educations often have combined debt loads in excess of $120,000

This escalation in law school tuition and willingness of law students to incur such high debt was fueled by near 100% employment rates at or within six months of graduation and relatively high salaries in the 1990s and early 2000s, with some entry level salaries above

$160,000 per year by 2008 Since 2008, the number of such high paying positions has dropped significantly and employment rates have been reduced

Educational debt has also had a significant impact on practice options graduates pursue Students who may otherwise wish to practice as public interest lawyers by working for non-profit organizations or the government often seek higher paying jobs in private firms and companies in order to repay student loans To assist students who want to dedicate their legal careers to public service, many law schools developed loan repayment assistance programs, known as LRAPs, given the absence of significant federal loan assistance In 2007, through the College Cost Reduction and Access Act, the federal government stepped in to provide meaningful loan forgiveness assistance, and this has helped students who are committed to public interest law These students still must be able to meet the program’s requirements, including the requirement that they make 120 on-time loan payments using the Act’s income-based repayment plan while working full-time in a qualifying public interest position for each of those 120 months Competing obligations can make this a challenge for some students

Law faculty have been the primary beneficiaries of higher tuition in the form of increased number of faculty with higher salaries and reduced teaching loads, especially over the past twenty years Today, however, faculty hiring has been greatly reduced and faculty salaries are generally frozen and, at some state law schools, reduced as much as 10 per cent Law schools are also exploring sharing the costs of running and staffing law libraries Still, these measures have simply slowed tuition increases and have not lead to tuition reduction Some in legal education believe that many law schools will have to change dramatically to remain viable

C Regulation of Legal Education

As late as 1921, no state required a university-based law school degree as a precondition for admission to practice Apprenticeships provided most of the training for those entering the legal profession Today, all but seven jurisdictions require a J.D or LLB degree in order to become licensed, and 19 of the 54 states and U.S territories require that it come from a law school that has been accredited by the American Bar Association Those jurisdictions that do not require graduation from an accredited law school usually have other requirements, such as state approval of the law school

From the inception of the American Bar Association in 1878, the organization instructed its nascent Section of Legal Education and Admissions to the Bar to prepare uniform requirements for law schools These requirements became the ABA Standards for Approval of Law Schools By the close of 1930, nearly every law school had adopted the Standards as the principles for law schools to organize their curricula and operations In 1952, the U.S Department of Education granted the ABA’s Council of the Section of Legal Education and Admissions to the Bar the authority to accredit legal education programs in the country This step made the ABA the established accrediting agency for law schools and thus moved the Standards from a voluntary set of principles to a basis for law school accreditation This was a delegation of the accrediting role by the Department of Education to the ABA Approximately every five years, the Department of Education reauthorizes the ABA to continue its role as law school accrediting body, provided it meets with the approval of the Department Based on this

authority and consistent with the regulations issued by the Department of Education, the Council has refined the standards and rules and has evaluated law schools ever since 1952

In addition to the 210 law schools that have received accreditation by the ABA, there are approximately 40 law schools that are not accredited Accreditation means that the schools have met the minimum requirements set by the Standards and Rules of Procedure for Accreditation of Law Schools (hereinafter, Standards) The Standards address every aspect of institutional performance, including strategic planning, faculty governance, allocation of authority between the dean and the faculty, non-discrimination in hiring and in student enrollment, the curriculum, the extent of library and information resources, and the adequacy of the facilities

Approximately 90 percent of the accredited law schools are part of a larger university, and students attending such schools benefit from the broader resources the universities have to offer However, relationship to a university raises questions of autonomy within the law school The Standards provide some guidance in this regard, specifying that the dean is to have the authority and support needed to be effective, and both the dean and the law school faculty must have a significant role in determining educational policy Furthermore, law school resources must be adequate to sustain the program of legal education and the school’s mission Since law schools are often among the better endowed departments within universities, it is tempting for universities to tax or reallocate some of the funds, and this ABA requirement provides some protection Conversely, the Standards addressing faculty size, libraries and facilities have provided support for making law school expenditures a priority for allocation of university resources The Standards and ABA oversight have resulted not only in framing the expectations for legal education, but have meant that universities and those authorized to accredit universities have essentially left law schools alone.1

The ABA’s Section of Legal Education and Admissions to the Bar has detailed requirements for accreditation of law schools that are set out in its Standards for Accreditation and Rules of Procedure The Standards and Rules are generated and revised through the Section’s Standards Review Committee The committee is composed of volunteer law professors and deans, academics who are not from the legal academy, lawyers, and judges The Standards Review Committee drafts standards and rules that are submitted to the Council of the Section of Legal Education and Admissions to the Bar, which is a similarly composed body If approved, the draft standards are sent back to the Committee for purposes of soliciting public commentary After receiving public input, the draft language may be revised prior to submission

to the Council for approval Once approved by the Council, the ABA’s House of Delegates, composed of lawyers elected to represent their jurisdictions from across the country, can review the proposed changes However, final passage rests with the Council The work of the Standards Committee is ongoing It reviews the Standards in response to perceived shortcomings and issues affecting the quality of legal education, and the Department of Education requires a periodic comprehensive review The comprehensive review is generally done every five to seven years

1 The Department of Education has also delegated the responsibility to accredit universities to regional accreditation organizations To the extent that law and other professional schools that have independent accreditors are part of the university, there is some general overview that may be consistent with regard to university accreditation However, the professional school accreditation is essentially separate from that of the university This is not a consideration at all for those law schools that are not connected to a university

The process of accrediting law schools requires compliance with all of the Standards, as well as a process of assessment and self-reflection by the schools Schools are required to develop a written self study that includes the school’s mission statement, describes its program

of legal education, evaluates the strengths and weaknesses of the program in light of the school’s mission, sets goals to improve the program, and identifies the means to accomplish unrealized goals In addition to the self study, law schools are required to submit answers to a site evaluation questionnaire which asks a series of questions about s law school’s history and current operations The self study and questionnaire provide the framework for the accreditation site visit and report A team of volunteers, composed of faculty members and a dean from other law schools and at least one person who is not a law academic, visit the law school and submit a detailed report to the Section’s Accreditation Committee That committee does a thorough assessment of the school, asks the school to address any shortcomings, and ultimately makes a recommendation to the Section’s Council with regard to accreditation or continued accreditation

of a school A new law school that receives provisional approval is subject to annual site evaluations until full approval is granted, and this process must be completed within five years Once accredited, law schools must be reaccredited every seven years Despite the seven year interim, schools are nonetheless required to respond to the annual questionnaire, which is similar

to the site evaluation questionnaire’s request for information about current operations, including enrollment, bar passage and how the school is otherwise meeting the Standards

Apart from the ABA’s mandatory accreditation requirements, virtually all law schools seek voluntary membership into the Association of American Law Schools (AALS) and the AALS has a variety of membership requirements As described by former AALS Executive Director and Deputy Director, Carl Monk and Harry G Prince:

When the AALS was founded in 1900, there were only four membership

requirements: 1) students admitted to law study had to have completed a high

school course of study or its equivalent; 2) the law school course of study had to

cover at least two years of thirty weeks per year; 3) law schools had to establish

some method for examining students to determine their competence prior to their

graduation from law school; and 4) the law school had to have convenient access

to a law library As the AALS has grown, and as legal education has advanced,

the membership standards have also developed to address more areas of a school's

academic program When considered together, all of the membership

requirements are designed to achieve the same objective that all of the

Association's member schools will offer quality instruction and support legal

scholarship in an intellectually vibrant environment that is free from

discrimination on improper grounds and that protects academic freedom …

The six core values identified by AALS member schools are teaching, research,

maintaining an intellectual community (including intellectual and cultural

diversity), assuring academic freedom, establishing a sound governance structure,

and sustaining a commitment to justice and public service Secondary concerns

include those that relate to sustaining the academic enterprise through

maintenance of a sound infrastructure (personnel, library support, physical

facilities, and financial support) To effectively pursue the core membership

requirements, a school must have physical facilities, library resources, and a

faculty that is adequate to pursue its teaching and research missions The schools

must apply standards for admission that will produce students capable of

successfully completing the academic program, and the school's operations must

be free of discrimination on impermissible grounds.2

Approximately 28 of the 210 ABA accredited schools have not yet achieved membership in the AALS by meeting the above requirements and criteria

Today, the ABA Standards address five substantive areas concerning a law school’s curriculum and operations: organization and administration; program of legal education; faculty; admissions and student services; library and information resources; and facilities The Standards addressing the organization and administration of law schools include matters such as the relationship between the law school and university, the need for strategic planning, law school governance and the allocation of authority between dean and faculty, non-discrimination, equal opportunity, and diversity for students, faculty, and administrative staff The program of legal education Standards include requirements for the curriculum both in terms of content and measuring achievement The faculty Standards include regulations concerning faculty qualifications, the size of the full-time faculty, the responsibilities of full-time faculty, the instructional role of faculty, and the professional environment The admissions and student services Standards outline educational requirements for law school applicants, basic consumer information about the law school, student loan programs, and student support services The Standards focusing on the library and information resources covers qualifications for the law library director, the content of the library collection, personnel, and services requirements The final substantive section focuses on facilities, and these Standards discuss the need for sufficient space for classrooms, research, study, and technological capacities

The various ABA Standards and AALS membership requirements provide broad parameters for legal education, leaving room for considerable flexibility in how law schools construct their programs They are prescriptive in curricular areas that law schools have not traditionally prioritized, such as the requirements for legal writing courses in the first year and an additional upper level writing course, teaching professional skills, teaching the “values, rules and responsibilities of the legal profession,” and providing substantial opportunity for live-client or other real-life practice experience.3 Beyond that, law schools are expected to make the subject matter relevant to the educational mission Despite this authority, law schools have followed a similar path As we discuss below, the curricula of most law schools, especially in the first year

of law school, is virtually indistinguishable from school to school In the second and third years, students take an array of courses, with choices in course selection often influenced by what subjects, beyond the first year courses, are expected to be on the bar examination each student expects to take A school may be influenced by a strong social justice commitment, religious affiliation, economics, or other perspectives, but the approach is not significantly affected With some notable exceptions, graduation from a law school in the United States is a fairly uniform experience, enhanced by the faculty, support, and setting, but not by curriculum

2Carl Monk & Harry G Prince, Symposium: A Global Legal Odyssey: How Can an Association of Law Schools Promote Quality Legal Education? , 43 S TEX L R EV 507, 508-09 (2002).

3 ABA Standard 302

D Legal Education Curriculum and Methodology

Although preparing law students to become effective, ethical lawyers is the announced goal of law schools, the course of study at most U.S law schools does not necessarily reflect a sequence of courses designed to teach and train students to be lawyers Instead, U.S law schools have a heavy emphasis on teaching legal doctrine and legal analysis

Doctrinal courses dominate most law school curricula In addition to emphasizing legal doctrine, most law school courses focus on the lawyering skills of legal analysis and problem solving Courses focusing on other necessary lawyering skills and professional values are much fewer in number than doctrinal courses

As mentioned previously, the ABA Accreditation Standards require relatively few law school courses The Standards require each student to receive substantial instruction in legal analysis and reasoning, legal research, problem solving, and oral communication The typical first year curriculum fulfills these requirements The Standards also require every student to take

an ethics course, a rigorous writing experience in the first year, and an additional rigorous writing experience after the first year Law schools usually fulfill the second writing requirement by requiring students to enroll in writing seminar courses in which law students research and write papers on various legal issues that the faculty teaching the seminars approve

These required areas of instruction in the Standards reflect an effort by the ABA to ensure that every law school graduate will receive some education in areas necessary to become effective and responsible participants in the legal profession This includes instruction in substantive law, though the law schools may decide which substantive law courses to require Legal analysis and reasoning, legal research, problem solving, oral communication, writing, some other professional skills instruction, and legal ethics are all essential to become an effective lawyer The Standards also require substantial opportunities for students to take live-client or other real-life practice experiences in law school, participate in pro bono activities, and engage in small group work through seminars, directed research, small classes, or collaborative work These requirements are also important to educating law students to be effective, responsible lawyers While the Standards identify these various subjects and teaching methodologies as ones that every law school must include, the Standards do not specify the exact content of the courses

or exactly how law schools must employ the teaching methodologies

Because the ABA Standards do not specify the exact content of the curriculum and required courses, the Standards permit variation among law schools The variation is, however, rather modest Most law schools have the same or similar courses, and the course of study is organized in similar fashion for most law schools Usually, law schools have a limited number

of required courses, typically 30 to 40 percent of the courses required for graduation The rest of the courses are electives for students

Most of the required courses are part of the first year of the three year full-time law school curriculum The typical required doctrinal courses in the first year of law school are: Civil Procedure, Constitutional Law, Contracts, Criminal Law, Property, and Torts; there is also

a required writing course, typically called Legal Writing, Analysis, and Research In addition, every law school requires a course in legal ethics, usually called Professional Responsibility or Legal Profession, which is usually required during the second year of law school or required to

be completed during the second or third year of law school

These are the typical required courses because law faculty and practicing lawyers believe that these courses represent the core areas of substantive law, legal research and writing, and ethics necessary to be an effective lawyer The doctrinal courses in the first year are considered building blocks for other substantive areas of law, and the teaching methodology in first year courses focuses on legal reasoning and problem solving by students as much as the subject matter of the courses

Apart from the largely doctrinal curricula described above and their focus on the lawyering skills of legal analysis and problem solving, the ABA Standards require every student

to receive “substantial instruction” in other professional skills “Substantial instruction” is not clearly defined in the Standards, but the ABA appears to approve as little as one credit worth of instruction in professional skills as satisfying the skills requirement Most law schools satisfy this skills requirement by permitting students to choose from among a list of lawyering skills courses offered in the school’s curriculum

Law schools utilize three primary types of courses to teach a wider array of lawyering skills than those taught in the required curriculum: simulation courses, clinical courses and externship courses or external placements Simulation courses employ a teaching method in which students are put into simulated or hypothetical lawyer roles to perform some aspect of the lawyering process in a controlled setting that is reviewed and evaluated by the professor Many schools include a simulated moot court requirement in first year research and writing classes, requiring students to prepare a brief in a hypothetical case and present an oral argument on that case against another student Most schools have an elective simulation course in trial advocacy

or trial practice Other common simulation courses include appellate advocacy, negotiation, interviewing and counseling, fact investigation, alternative dispute resolution and mediation

Clinical courses are usually referred to as “in-house” clinics, to distinguish them from externships, because they typically involve representation of clients in an internal or in-house law office created by the law school for the purpose of providing contextual experiential learning opportunities for students They are also often referred to as “live-client” clinics, to distinguish them from simulation courses because the clients and cases are real, not hypothetical Students are usually given substantial authority for handling actual legal matters in real cases with instruction, evaluation and critique provided under close supervision by the clinical professor Every state has a student practice law authorizing law students to engage in the practice of law under law faculty supervision Clinics include a classroom component to teach, among other topics, lawyering skills, applied substantive law, ethics and professional values arising from or utilized in the actual casework While most clinics represent clients in litigation or other contested proceedings, a growing number of law schools have clinics in transactional practice, mediation, legislation or other non-litigation settings Clinics are sometimes organized with a focus on particular subject areas such as criminal defense, family law, non-profit or small business organizations, general practice or environmental law Others are organized around