Experiential Legal Education: New Wine and New Bottles

Volume 44 Number 2

By

About the Author

Robert Dinerstein is professor of law and associate dean for experiential education at American University, Washington College of Law, and director of the law school’s Disability Rights Law Clinic. From 2006 to 2011, he was a member of the Council of the ABA Section of Legal Education and Admissions to the Bar.

 

 

Robert Dinerstein, professor, American University Washington College of Law

Of all of the current critiques of legal education—it is too expensive, students undertake excessive debt to finance their education, the economy will not support the number of newly minted lawyers seeking jobs in the legal profession, law schools do not offer enough of the kind of training that nascent lawyers need—the latter critique is the least accurate. To the contrary, law schools are offering an ever-increasing array of classes, courses, programs and experiences that provide students with the opportunity to learn, and reflect upon, legal skills, doctrine, ethics and theory in the context of real and simulated legal work. Under the capacious umbrella of “experiential education,” law students have opportunities to be active, engaged learners not only in the law school classroom but in the world beyond. But what do legal educators mean by experiential education and how can the term be a useful one and not simply the latest rhetorical flourish?

Within education generally, experiential education has a distinguished history and lineage, and draws heavily on the theories and practices of John Dewey, David Kolb, Paulo Freire, and others.  It can include programs as diverse as outdoor education and service learning.  Its emphasis is on student self-reflection on experience as an entry point into learning.  The experiential educator seeks to structure experiences that permit students to “plan, do and reflect,” a mantra that will sound very familiar to clinical legal educators.  Thoughtful repetition of experiences, with changes and adaptations made in response to new information and insights (including those based on external critiques), provides space for the students’ growth and development.

But what exactly is experiential education in law?  I admit I have been thinking about this question with somewhat greater urgency lately since being appointed in September 2012 to a new position in my law school, associate dean for experiential education.  (A number of schools have created similar positions in recent years.) At American, at least, the position includes directing our extensive in-house clinical program and interacting with our supervised externship program and simulation courses and programs.  But does it also include involvement with faculty who use role-plays and simulations in doctrinal or subject-matter classes, co-curricular activities, pro bono opportunities, legal writing,  part-time student employment, grant-funded projects on which students work (either for credit or compensation), and newly developing practicum or other so-called hybrid programs? Perhaps.

One recent report on legal education provides some guidance on the definitional question. The authors of Best Practices for Legal Education (CLEA, 2007) write (at 165) that “Experiential education integrates theory and practice by combining academic inquiry with actual experience.” The report distinguishes experiential education from experiential learning (which can occur in many informal settings) in its focus on academic inquiry, and in the role the instructor plays in designing and structuring the student’s experience. (Id., citing Moliterno).  Best Practices distinguishes experiential courses—“those courses that rely on experiential education as a significant or primary method of instruction”—from subject-matter courses in which “experiential education is a valuable but secondary method of instruction,” mentioning such examples as court observations and role-plays. (Id. At 165-66).  Although noting that some legal educators would restrict experiential education to real-life experiences, the Best Practices authors include simulation-based courses, along with in-house clinics and externships, in their definition of experiential education courses. (Id. 166).  (In a recent article, Prof. Susan Brooks also includes simulation-based courses in her definition of experiential education.) What these courses have in common--and what is distinctive about experiential legal education--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 on. Identifying issues from a role-based perspective provides a kind of learning that often is more immediate and has a greater impact on the student than more traditional classroom-based learning.

How does the above discussion relate to the regulatory framework in which law schools operate? Existing ABA Standards do not mention experiential education. Rather, they require that law schools provide substantial opportunities for “live-client or other real-life practice experiences” (Standard 302(b)(1)), which can be “clinics or field placements”(Interpretation 302-5).  (The Standards further elaborate on the requirements for field placement programs in Standard 305, Study Outside the Classroom, though they do not define or provide criteria for live-client (or in-house) clinics.) The Standards currently require that all students receive substantial instruction in “other professional skills” (other than legal writing) “generally regarded as necessary for effective and responsible participation in the legal profession.” (Standard 302 (a)(4)).   The Interpretations define substantial instruction as requiring students to engage in skills performances that an instructor assesses (Interpretation 302-3), and Consultant’s Memo #3, March 2010, states that “at least one solid credit (or the equivalent) of skills training” is required to meet the Standard. These provisions may not exhaust the areas that might constitute experiential education. Arguably, Standards and Interpretations addressing legal writing (Standard 302 (a)(3)), pro bono opportunities (Standard 302 (b)(2)), and small group work (Standard 302 (b)(3)) could be characterized as part of experiential education.

The most recent draft of the 300 series standards that is part of the ongoing comprehensive review of the Standards has in fact adopted the terminology of experiential courses and provides guidance that, if adopted, may prove helpful to some extent.  Proposed Standard 303 (a) provides that:

A law school shall offer a curriculum . . . that requires every student to complete satisfactorily at least:  . . .  (3) one or more experiential course(s) totaling at least three semester hours (or equivalent quarter hours) after the first year that must integrate doctrine, theory, skills and legal ethics and engage students in performance of one or more professional skills identified in Standard 302.  An experiential course or courses must be: (i) simulation course(s); or (ii) in-house clinical course(s) in which students represent clients; or (iii) field placement(s) as defined in Standard 310(3). (Comprehensive Review of Standards, Standards Review Committee, Drafts for Consideration at Committee Meetings, November 16-17, 2012, Meeting Materials, p.14 of 116). Proposed Interpretation 303 -2 states that:

To qualify as experiential, a course must be primarily experiential in nature and:

(a)    Integrate doctrine, theory, skills and legal ethics, and engage students in performance of one or more professional skills identified in Standard 302;

(b)   develop the concepts underlying the professional skills being taught;

(c)    provide multiple opportunities for performance; and 

(d)   provide opportunities for self-evaluation.

 (Id.).

These definitions and criteria, although adopting the Best Practices typology of experiential courses (and therefore providing an important clarification regarding which courses can satisfy Standard 303, presumably excluding the legal writing, pro bono and small-group experiences mentioned above), do not in fact define experiential education, except tautologically. (An experiential course “must be primarily experiential in nature.”) The proposed Standard and Interpretation also seem to equate experiential education with skills training, and although there is an overlap between these concepts they are hardly identical.  Indeed, experiential education can play an important role in helping students to develop their professional identity (a key recommendation of the Carnegie Foundation’s influential book, Educating Lawyers: Preparation for the Profession of Law (2007)) or a commitment to social justice. The latest draft also has deleted the prior draft’s inclusion of faculty critique, feedback and evaluation of student performance, as well as enhancement of students’ capacity to engage in guided reflection, as part of the requirements for experiential courses, which could diminish the emphasis on “academic inquiry” that Best Practices highlighted (and reduce the role of faculty involvement in this important enterprise).

So, although the new Standard and Interpretation, if adopted, can provide a modest push for the development of experiential courses, they will not—and, I would argue, should not—establish the outer limits of what the concept of experiential education can mean for law schools legal education. For that, we must turn to the increasing number of efforts by individual faculty, law schools, law school symposia and law school consortia to disseminate information about, and to present models demonstrating, various forms of experiential education.  The three post-Carnegie Report Crossroads Conferences, the Alliance for Experiential Learning in Law (hosted by Northeastern University School of Law), and the Educating Tomorrow’s Lawyers consortium (hosted by the University of Denver) are just three recent examples of exciting developments in the area of experiential education.  These entities have provided important sites for interchange among law faculty, law schools, practitioners, and law students committed to expanding the number of experiential opportunities law schools offer to their students. Although continued growth of in-house clinical, externship and simulation courses will be an integral part of this movement, experiential education will not be limited to these formats. Capstone courses, courses that provide experiential “add-ons” to subject-matter courses (e.g., through partnerships between law faculty and local practitioners), an enhanced number of inter-disciplinary courses, increasing use of experiential methods in mid-size and large subject-matter or doctrinal courses (e.g., increased use of role-plays, small group collaboration, mock hearings and negotiations between law students taking courses in different law schools), as well as more thorough-going curricular changes, such as Washington & Lee’s “Third Year Reform”—all of these developments, and more, will serve to flesh out the meaning of experiential education in the legal education context.

Our conception of the goals of legal education is evolving, as it must, and experiential education is an important part of that process of change. Modes of education that emphasize active student engagement and the ability to learn from experience resonate with the increasingly complex needs of society and the expectations of our students. Experiential education can contribute to our students not only being “practice-ready” but “life-ready.” The opportunities are exciting, if we will only take advantage of them. Experiential education may be a new term for legal educators, but the lessons it can offer are timeless.


References:

Susan L. Brooks, Meeting the Professional Identity Challenge in Legal Education Through A Relationship-Centered Experiential Curriculum, 41 Balt. L. Rev. 395, 403 (2012).

James E. Moliterno, Legal Education, Experiential Education, and Professional Responsibility, 38 Wm. & Mary L. Rev. 71, 78 (1996)(citations omitted).

 

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