Implementation of the ABA's New Experiential Training Requirement: More Whimper Than Bang

Abstract

When the American Bar Association adopted a new experiential training requirement in 2014, there was hope it would spur law schools to significantly change the way they prepared students for legal practice. The new six-credit requirement was less than the fifteen credits proposed by some educators and did not include a mandate for a law clinic or externship experience. Nonetheless, the six credits were an improvement over the ABA’s previous “substantial instruction” in professional skills requirement. But data from the first two years of the new six-credit requirement in 2019 and 2020 suggest its effect has been more of a whimper than the bang some hoped for, with little evidence it has spurred legal education to enhance the ability of students to get hands-on training in professional skills.

While some law schools have made important changes to their curriculum, on average, schools have not reported positive changes. The number of law clinic seats available per J.D. student since 2014 is unchanged, and externship placements and seats available in simulation courses have decreased over the six-year period. Similarly, data show that a New York Court of Appeals skills competency standard adopted in 2015 for bar candidates does not appear to have spurred New York’s schools to noticeably enhance their professional skills training of students or to provide more training than schools in states following only the ABA requirement.

Results from the recent Center for the Study of Applied Legal Education (CSALE) “2019-20 Survey of Applied Legal Education” of law schools likewise show little measurable effect from the new experiential training standard. Schools reported no increase in the median number of law clinic courses offered to their students since the 2016-17 survey and no increase in the percentage of students that graduate with a clinic experience. Similarly, there was no reported increase in the percentage of students that graduate with an externship experience, with student demand for externship courses up slightly from the last survey yet significantly less than externship demand in 2014 when the new ABA standard was adopted.

It is time for the ABA to address these deficiencies by at a minimum requiring law schools to report actual enrollments in law clinic and simulation courses so that the ABA can better judge the effect of its requirement and prospective applicants to schools will not continue to be potentially deceived by reports of ethereal “available” law clinic opportunities. Yet, the ABA should do much more by heeding the many calls for reform of lawyer training and revisit proposals for fifteen-credits of experiential coursework and a mandatory, live-client clinical experience for all J.D. students.

Keywords: legal education, law school, experiential training, law clinic, externship, field placement

JEL Classification: K00