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Friday, July 10, 2015

Concerns Over the California State Bar's Practical Training Proposal

Paul Caron has this post at TaxProf Blog quoting extensively from a (paywalled) article at The National Law Journal. From the quoted portion of the article:

The State Bar of California is pushing forward with a proposal to require candidates for admission to the profession to have completed 15 credit hours of practical training, over objections from deans around the country. 
The idea is to ensure that new lawyers are ready to practice law. But the Association of American Law Schools’ Deans Steering Committee warned the proposed rule would stifle curricular experimentation, limit the flexibility students now enjoy in choosing courses, and create a confusing patchwork of differing state requirements. 
Moreover, the repercussions would be felt well beyond the Golden State, since so may graduates want to practice there, the group said in a written statement.

“The intention comes from a good place, but it would make things difficult for the law schools and the students, operations-wise,” said University of Nebraska College of Law Dean Susan Poser, one of the 15 deans on the steering committee. “We already have an accreditor. It’s the [American Bar Association]. They tell us what we need to teach. To potentially have 50 state bars accrediting us is very complicated.”
The article goes on to note that deans are concerned about students who pursue joint degrees and students who are interested in subjects like tax law which focus more on doctrine than other areas of study.

Beyond these concerns, California's proposal may exacerbate a decline bar exam passage rates. Derek Muller has blogged extensively on the phenomenon of falling bar exam passage rates with examples of such posts here and here. In this December post, Muller highlights the National Counsel of Bar Examiners' (NCBE's) response to declining scores on the Multistate Bar Examination (MBE). The full NCBE report on falling scores is available here.

The NCBE notes that declining scores may be due in part to a rise in experiential learning. From the report:

The rise of experiential learning—a laudable objective—has also ushered in the greater use at some schools of pass/fail grading that may mask the needs of students at risk. Without grades for feedback, students may not realize they are at risk. In addition, the rise of experiential learning may have crowded out time for students to take additional “black-letter” courses that would have strengthened their knowledge of the law and their synthesis of what they learned during the first year
I am of the opinion that experiential learning has value, but it should not take up a substantial amount of students' time in law school. As I have suggested in previous posts, law schools offer the unique opportunity for students to systematically learn the doctrine of particular legal practice areas. While this teaching may veer into overly theoretical realms at times, the knowledge base that students gain allows them to be more thorough and creative when they ultimately apply their knowledge in a practical context.

My opinions on doctrinal learning aside, the NCBE's report suggests that a shift in focus from doctrinal to experiential learning may indeed have a detrimental effect on students' abilities to pass the bar exam. Even if experiential learning teaches valuable skills, these skills are ultimately of little use if students do not become practicing lawyers.

I hope that the California Supreme Court and Legislature consider the problems the California State Bar's practical skills proposal may create. Several levels of review remain before the proposal becomes reality, and these issues will hopefully be noted as the proposal works its way through the process.

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