The Ninety-Five Theses: Systemic Reforms of American Legal Education and Licensure
87 Pages Posted: 31 Jan 2012 Last revised: 1 Jan 2013
Date Written: November 7,, 2012
Knowledgeable and respected authorities inside and outside the legal academy are correctly describing the American system of legal education as being in a state of “crisis” and in need of dramatic reforms. Yet most members of the legal academy refuse to accept that major structural reforms are necessary. Despite the academy’s intransigence, I feel compelled to nail my 95 theses to the academy’s door in the hope of hastening, however slightly, its glacial movement towards meaningful reform. The theses comprise six major themes, the first five concerning the legal academy and the sixth concerning the legal profession itself: (1) defects in the law school admissions process; (2) structural problems resulting from the excessive number of law schools, the ABA accreditation process, the current manner of law school faculty governance, and the current system of ranking law schools; (3) defects in law schools’ curricula, pedagogical methods, and assessments of students; (4) deficiencies in the professoriate at law schools; (5) problems related to legal scholarship and law reviews; and (6) flaws in the bar exam and licensure process and also in the process of graduates’ transition from law school to the job market. Most of the problems are interrelated and result in a negative synergy that increasingly threatens the health of the legal profession. As a result, the only way to effect meaningful change likely to persist is to implement systemic reform – root to branch.
Every major decision made by a law school should reflect a genuine fiduciary commitment to their students – with the ultimate goal of producing graduates who will be competent, ethical entry-level attorneys, that is, graduates who are “practice ready.” They should hire faculty members; design curricula and pedagogies; and admit and assess students with the primary goal of producing attorneys who can hit the ground running upon graduation. Law professors should make legal scholarship secondary to their teaching duties, and their scholarship should be relevant to the bench, bar, and legal policy-makers. Law schools also need to charge a fair amount of tuition in view of the quality of the legal education that they provide to students and expect students to carry reasonable amount of debt in relation to their job prospects. Finally, state licensing authorities should require law school graduates to demonstrate the broad range of competencies needed to be an effective entry-level practitioner before licenses are issued.
With these aspirations for the legal academy and legal profession in mind, I contend that that many structural changes in the current system of legal education are necessary – beginning with the manner that schools admit law students, continuing with the manner they teach and assess them during law school, and concluding with the manner in which law school graduates are admitted to the bar. Some proposed reforms look to effective practices in American medical schools and business schools as models. For most of the reforms to occur, law schools must engage in paradigm shifts in several areas in addition to modernizing their curricula and pedagogies – they must alter the composition of their faculties, their approach to legal scholarship, and their relationship with members of the bench and bar. The ABA’s Section on Legal Education and Admissions to the Bar must pave the way in order for these structural changes to occur. In particular, the ABA standards governing law school accreditation must be amended substantially – with respect to faculty composition, faculty governance, faculty duties concerning scholarship, and law school curricular requirements. Without such changes, no meaningful systemic reform will ever occur, and the many problems that currently plague legal education will continue. The ball is in the ABA’s court but, ultimately, law schools must effect change themselves (with or without the ABA’s help, to the degree that they are able) – for the good of law students, the legal profession, and the public. We can, and should, turn the current crisis in legal education into an opportunity for meaningful change.
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