Maureen A. O’Rourke
Dean and Professor, Boston University School of Law
2017-2018 Council Chair
As I conclude my year as Council Chair as well as, coincidentally, 12 years as Dean (and another 2 as Interim Dean) at Boston University School of Law, I’m struck by how much both legal education and the broader world have changed not only over the course of the past decade but even in just this last year. Rapid change in the legal profession, methods of communication, technology, and the global order seems likely to continue as a fact of life in the coming years. In this column, I focus on how this environment influences the curricular choices of law schools and the Council’s approach to curricular issues. Generally, in approaching adjustments to the accreditation standards in the future – whether related to curriculum or another topic - the Council should continue to balance the flexibility that a dynamic future demands while continuing to fulfill its critical roles. These include providing valuable services to the state supreme courts and the bar admissions process and protecting law students and the public through the ABA law school accreditation process. While we can debate many issues regarding law school curriculum, perhaps the most important ones will revolve around matters once regarded as uncontroversial – the value and maintenance of our system of government and the rule of law.
The dramatic economic downturn of 2008-09 and steep decline in law school applications between 2011 and 2016 intensified the critique of law school curriculum that some practicing lawyers and commentators have long had. More specifically, they argue that legal education, essentially on the surface little changed for at least the last half century, lacks relevance for today’s practice, and thus fails adequately to prepare graduates for their first jobs in law. At the same time, ironically, during periods of rapid change, many could argue the opposite – that the best that schools can do for their students may be to provide them with the skills they need to become lifelong learners. These basic competencies include research, writing, and analytical thinking ability that graduates will bring to whatever new technologies and challenges the practice of law presents in the future. If this argument is persuasive, then schools might be forgiven for continuing to do what they always have – provide training in all of these skills and prepare their students to pass the bar, while delegating to employers the task of providing detailed training in the context of specific employment.
In reality, neither most schools nor the Council have stood still when it comes to curriculum – either over the last half century or in the last decade. Virtually every law school offers a wide range of clinical and externship opportunities, allowing students to gain practice skills in real-world settings. Many allow students to pursue dual degrees that help to reinforce the interdisciplinary nature of legal practice, and provide students with a broader perspective. Many schools have also re-balanced their litigation and transactional offerings, reflecting the reality that while most lawyers will never argue a case in court, most will need to counsel clients, negotiate disputes, and draft agreements. Some have integrated teaching basic business principles into the curriculum, and a few have begun to teach “Coding for Lawyers” to acquaint law students with the many and varied uses clients and firms have for technology. Schools should accelerate these trends to account for the challenges that “big data” and globalization present for both the content of and practice of law.
To the surprise of some, the Council has never mandated much in the way of curriculum in the accreditation standards. The standards set a minimum number of credit hours for the J.D. degree and historically required only courses in legal writing and professional responsibility. Bringing its professional judgment to bear, the Council recently added a requirement that all students must complete 6 credits of “experiential education,” defining that term as a clinic, externship, or simulation. That most schools’ first year programs continue to look essentially alike reflects a near universal belief in the importance of the common law method and knowledge of both basic legal doctrine and topics tested on the bar exam. What has changed, however, even in the first year, is methods of evaluation. Many schools are experimenting with assessment methods other than or in addition to a final at the end of a course. Professors increasingly provide feedback to students throughout a semester to help students assess their progress and faculty members themselves to consider whether adjustments in their teaching methodology or coverage may be appropriate. The standards encourage this process through a new requirement that all schools define learning outcomes and assess progress toward achieving them.
We can expect innovation in both curricular offerings and assessment methods to continue without the standards having to mandate particular courses. Schools may distinguish themselves by defining learning outcomes appropriate to their missions, and the Council will work to ensure that accredited schools assess the effectiveness of those outcomes and make adjustments in a rigorous manner. Thus, the traditional system of the Council’s imposing relatively minimalist curricular requirements should continue. It seems appropriately to balance schools’ desires for flexibility with methods to ensure the curriculum is in fact delivering to students what schools represent it will.
The preceding does not squarely address the criticism that schools fail to prepare students for practice. While they do more in that regard than 50 or even 10 years ago, whether “more” is “enough” is a question both worthy of debate and not simple to answer. It is made more complex because in the current legal market, students often have not secured employment until sometime after graduation. This makes it difficult to prepare them in detail during law school for what is at that time an unknown practice area. Over time too, schools have moved away from requiring courses after the first year, making students’ particular course selection individualized and thus less amenable to generalization. Grading systems too are highly variable (I suspect that the overall trend has been to increase grades), again making generalization difficult. Another complicating factor is the difficulty of pinning down precisely what is meant by a lack of preparedness. At least some commentators point not so much to “missing” legal skills as they do to a lack of grit, resiliency, respectfulness (particularly in communication), a sense of personal responsibility, and common sense.
Of all the criticisms directed at legal education, this last one – that a non-trivial number of new graduates lack certain necessary characteristics – actually concerns me the most, in part because it may ultimately be the most difficult to address and symptomatic of a much more significant and urgent problem. This criticism occurs against a larger context of polls that show a decline in support for a democratic system of government among the younger population. Like many others, I worry that our educational system has failed at every level to teach the most basic civics lessons. It may be that the traditional Constitutional Law class needs to be preceded by rudimentary classes about our system of government. How can we expect young lawyers to uphold the rule of law and the Constitution if they don’t understand how and why either came to be?
Civics education, while necessary, is not sufficient. Until recently, I would have argued that the responsibility for teaching character – and its concomitant traits of integrity, honor, fair-mindedness, empathy, civility, and compassion – rests with students’ communities during their formative years prior to law school. In June, however, I was privileged to attend the ABA Board of Governors dinner at which Colonel Linell Letendre, Professor of Law at the U.S. Air Force Academy, spoke about the Academy’s Center for Character and Leadership Development. She made a compelling argument that, in fact, character can be taught. If that is the case, then legal education – as well as the rest of the educational system - should get to it.
While Col. Letendre was speaking, I thought that it must be difficult to try to teach character when society values celebrity over substance, lawmakers of both parties worry more about re-election than the national interest, who speaks loudest is more important than who speaks the truth, and complex policy debates are reduced to 140 character ad hominem “tweets.” But try we must. Law schools must graduate the next generation of leaders – the people who will be at the forefront of expanding opportunity and guarding our freedoms; who believe in ideals bigger than themselves and their own self-interest; and who possess the integrity, courage, and toughness to fight for those ideals. In so doing, we in legal education will meaningfully honor the ABA’s commitment to “defending liberty and delivering justice.”