As the comprehensive review of the ABA Standards and Rules for Approval of Law Schools draws to a close this summer, a few observations about the role that the Standards play in evolution of legal education are in order.
Legal education observers cite the ABA Standards as “a,” “the” or “one of the primary,” reasons why law schools are in the shape that they are in, which for many in the popular press and blogosphere is not yet lean and healthy. The Standards, they say, are: too many, too detailed, too micro, too constraining on innovation, too much under the control of deans, too much under the influence of special interests within legal education, or not transparent enough – a partial list, no doubt.
However, legal education is not nearly as overweight and out of shape as the critics see it. The market is difficult. The legal profession is changing. Jobs are fewer and law graduates need to bring new skills and knowledge to the table if they want to be successful. Schools need to adapt in a shifting and changing environment, and many are. Further, the Standards over time have played a key role in supporting change and innovation in legal education. Finally, the set of Standards that will emerge from this comprehensive review makes important changes, removing some of the requirements that are overly micro and do not go to the core of what makes a “sound program of legal education,” and incorporating learning outcomes and skills training requirements that are more in sync with the contemporary legal profession and higher education environments in which law school operate.
Lastly, and to the main point of this piece, the Standards, at least from my experience as a dean, faculty member, and regulator, are seldom the roadblock to meaningful change, innovation, and adaptation to the environment by law schools. When one remembers that Standards are minimum levels of program, resources, and services required to support a sound program of legal education, this makes sense.
A few examples make the point:
- The new Standards will include a specific requirement for skills courses (law clinics, field placement, and simulations). The current Standards do not include such a requirement, but they do not preclude a law school from offering and, indeed, requiring of its students a substantial amount of practical experience. The quantity, quality, and scope of law schools’ skills offerings is impressive. Students flock to these courses because they see their value. Many schools require some skills coursework as a part of their degree requirements. That is, the Standards are not overly prescriptive on the curriculum that a law school must require, leaving space for the growth of skills programs. They have grown and now provide support for the Standards requiring a minimum amount of such coursework.
- Current Standard 502(a) prohibits a law school from accepting students into its JD program who have not completed three-fourths of the work needed for an undergraduate degree. That is, an undergraduate degree is not required by the Standards for admission to law school. In the conversation around the total cost to a person to get the education needed to become a lawyer, the timeline and expense can be reduced from a typical seven years to six years by law schools and undergraduate institutions creatively working out programs that are usually called 3+3 programs. Some might say that is still too long and too expensive. Perhaps, but the point here is that there is room to maneuver within the Standards, and now several dozen law schools are offering these options.
- The same is true for the length of time it takes to earn a law degree. A JD program is most often referred to as a three-year program, and that’s the way it generally is structured. But current Standard 304(c) requires a period of study of not less than 24 months, not 36 months (or three years). Schools are now exploring the space that the Standards offer to create “accelerated” programs that reduce the amount of time it takes to earn a law degree.
- Schools have considerable unused space to experiment with and incorporate distance learning and other educational technologies into their programs. Current Standard 306 allows a school to grant up to 12 credits toward the JD for true distance learning courses. Additionally, a course does not become a “distance learning” course that counts against that 12-unit limit so long as no more than 1/3 of the work for which credit is granted is done outside the classroom. So, blended learning, a “flipped” classroom pedagogy, and other innovations can be incorporated into the curriculum right now. The ABA does not collect data on how much of this increased use of technology in the context of a traditional residential program is happening, but my own observation would be that it is a tiny, tiny fraction of the space the Standards allow today for innovations in the curriculum based on what educational technology now allows.
Some will say, of course, why should the Standards require any particular amount of undergraduate education for admission to a JD program? Why should the Standards require any particular period of study? Why should the Standards care how much of a JD program is offered online? Sure the Standards provide for a little bit of flexibility and room to innovate, but our problems are huge and the Standards need to get out of the way.
I hear you. But almost no one believes that there should be no Standards. So, the question is really what should a good set of Standards require?
It is certainly fair to argue that the Standards should be quicker to change, should be simpler, and should focus more on the core of what makes a program sound. But “core” means different things to different people. That is what the ongoing conversation will be about. I look forward to being involved in those conversations.
Meanwhile, let’s acknowledge that the Standards leave ample room for law school to innovate, adapt, and change. As we continue to work on making the Standards better, let’s look for the space within them to do what we need to do for our students and the profession.