Law graduates of 40 years ago will recall doctrinal courses dominating their legal education. Although law students had no immediate plans to become appellate judges, they spent most of the first year reading appellate decisions on common-law subjects such as contracts and property. They probably never saw, much less drafted, a contract or a deed. They certainly never counseled a commercial client or negotiated a business deal. Most likely, the upper-class years were equally detached from actual practice. In 1972, a study of legal education reported:
Law schools teach very little of substance and offer perhaps even less “how-to-do-it” training; instead, they focus on various more general “skills,” such as legal bibliographical research, legal reasoning, and “thinking like a lawyer.”1
There was no pretense at that time that new graduates had the capabilities and competencies of experienced practitioners. As Walter Gellhorn observed in the mid-1970s, “law school is meant to prepare a student for professional life, not for the first moment of professional life.” Ideally, a legal education produced a new lawyer who “is ready to begin the constant self-polishing which leads to being an experienced, able, and worthy leader of the bar.”2
Law graduates of 20 years ago will probably recall a different experience. As the 1992 MacCrate Report described, law teaching no longer revolved almost entirely around a “core” curriculum emphasizing legal analysis and research. In simulation courses and live-client clinics, law schools were now teaching a range of other skills associated with legal practice such as “problem solving,” “factual investigation,” “communication,” “counseling,” “negotiation,” and “litigation.”3
At the same time, the MacCrate Report acknowledged that law schools still did not produce fully developed lawyers. While clinical courses could “help students understand the importance of the skill of ‘organization and management of legal work,’ … it remains for the first employer, or mentor, to translate this awareness into a functioning reality.”4 Likewise, despite law schools’ progress in teaching legal ethics and inculcating professional values, new lawyers’ ethical standards were more likely to be shaped on the job.
The MacCrate Report did not see this as a deficiency, however. Its theme was that “[t]he skills and values of the competent lawyer are developed along a continuum that starts before law school, reaches its most formative and intensive stage during the law school experience, and continues throughout a lawyer’s professional career.”5 The ABA task force that authored the MacCrate Report was convened in response to law firms’ apparent inability, in the face of increased economic competition, to train and mentor their young lawyers. But recognizing that law schools could not fully educate lawyers, the report encouraged strengthening continuing legal education and other post-graduate training.
In contrast, even as law practice becomes increasingly complex and specialized, bar leaders now criticize law schools’ inability to produce lawyers ready for practice. This is not primarily a response to fear that unemployed law graduates will practice without supervision. Much of the criticism comes from corporate law firms worried about the continued decline in the training and mentoring of junior lawyers in private practice. Corporate clients no longer pay for newly-minted lawyers to accompany senior lawyers to court and business negotiations and to perform other work that is largely designed to advance their education. And it is a distant memory when corporate clients paid for law firm associates to “cut their teeth” on small matters.
The New York bar has led the charge in challenging law schools to graduate “practice ready” lawyers. In 2011, the New York State Bar Association presented a resolution to the ABA urging “that the legal education providers focus on making future lawyers practice ready by enhancing clinical work and supervised activities such as meeting with clients inside and outside the clinical setting and in court, and developing further capstone courses.” The resolution drew on a report issued earlier that year by the state bar association’s Task Force on the Future of the Legal Profession.
Law schools are increasingly trying to meet this challenge. Although some professors consider the objective unattainable,6 law schools occasionally claim success in producing “practice ready” lawyers. The legitimacy of the claim may depend on what one means by “practice ready.” It is unrealistic to expect new graduates to do whatever senior lawyers can do—for example, to litigate a complex commercial case or negotiate a complicated business deal. Few graduates will be able to establish successful law practices in the areas in which they aspire ultimately to work. But if the idea is not to prepare graduates to practice independently, but to ready them for entry-level positions in which they will receive training and supervision, law schools today do far better than 20 or 40 years ago. The 2007 Carnegie Report is among the most significant influences on this latest turn in legal education.7
Senior lawyers might not recognize today’s law schools, which, at their best, provide abundant opportunities for students to “learn while doing” and to receive substantial feedback on the work they perform. For example, New York Law School boasts that in the past year it has doubled the number of clinics to 26, of which around a quarter are in government law offices. The law school’s dean, Anthony W. Crowell, explained that “it’s only natural that we embrace the City as our classroom by providing uniquely New York experiential learning opportunities for our students. This allows us to give our students the needed tools to meet the demands of today’s market and be leaders in the rapidly evolving legal profession.” The clinical offerings complement the school’s first-year required legal practice course, externship program, project based learning classes, simulation courses, alternative dispute resolution skills program, upper-class writing courses, and competition teams.
Extensive thought and planning go into law schools’ experiential offerings to ensure that they provide more than just on-the-job training. Clinical professors give students much more supervision, feedback and critique than new lawyers receive in actual practice because clinics expressly aim to use legal work as a focal point for learning. Clinical and other experiential courses typically adopt an ambitious educational agenda. A 2007 guide to best practices for law teaching identified the primary objectives of experiential courses to be helping students adjust to their roles as professionals, helping students become better legal problem-solvers, helping students develop interpersonal and professional skills, and helping students learn how to learn from experience.8
By way of example, a Cardozo Law professor, Ellen Yaroshefsky, recently devoted half of her teaching hours to designing and supervising a new eight-student Youth Justice Clinic. There was no handy blueprint for the clinic, because it is one of only two in the country focusing on the “school to prison pipeline”—that is, the intersection between public education and criminal justice. Students in the clinic partnered with the Legal Aid Society to provide representation in school suspension cases that grow out of criminal cases. Through this work, the students developed a variety of skills, including case management, interviewing, counseling and advocacy, and they also sought to develop cultural competency. The clinic students also conducted a study in connection with the NYC Board of Correction that culminated in the preparation of a report, “Rethinking Rikers: Moving From a Correctional to a Therapeutic Model.” The students gained experience in policy development, planning and implementation while engaging in intensive, supervised research and writing.
Innovative law schools have even developed experiential courses to address the particular challenge, noted by the MacCrate Report, of preparing students to address the ethical problems faced in practice. For example, students at Hofstra Law can participate in a “law for lawyering” seminar in which they handle disciplinary, legal ethics or malpractice matters under the auspices of disciplinary agencies or other law offices. At NYU School of Law, Barbara Gillers has established a Legal Ethics Bureau. She supervises students who give ethics advice to lawyers in public interest settings, draft amicus briefs on ethics issues, and assist lawyers serving on ethics committees of the bar. Through real-world exposure, students in both classes develop lawyering skills while gaining an insider’s perspective on lawyers’ ethical and professional problems.
Going Beyond Curriculum
Making students ready for practice is not just a task for the formal curriculum, however. Law students spend much of their time in law-related pursuits outside the classroom including in extracurricular activities and part-time and summer employment. Law schools strive to help students make the most of these opportunities. Because law practice is so specialized, law schools do not require all of their students to train in the same way but offer a menu of options. Law schools encourage students to make wise and purposeful choices, not only in electing courses, but in selecting extracurricular activities, such as journals, advocacy competitions and volunteer public service, and in summer and part-time employment.
At Fordham Law School, for example, although much of the upper-class curriculum is designed for students seeking careers in private practice, a purposeful student can prepare for virtually any area of practice. By way of illustration, consider two graduating students in Fordham’s Stein Scholars Program, a selective program for students seeking careers in public service and public interest law. Among other things, Stein Scholars work as interns in government and not-for-profit law offices, organize and attend programs on contemporary issues in public law, engage in volunteer work, interact with faculty and alumni mentors, and take specialized courses, including a capstone seminar in which students partner on projects with public interest law offices.
Alex, a graduating Stein Scholar, has trained to become a prosecutor. She worked in the summer after her 1L year in the Manhattan district attorney’s office and in the summer after her 2L year in a federal prosecutor’s office. During the upper-class academic years, Alex elected relevant substantive and procedural courses such as criminal procedure, evidence and a legal ethics seminar focusing on criminal advocacy. Additionally, she interned for a state judge who presided over criminal cases, enrolled one semester in a criminal defense clinic, and enrolled another semester in a prosecution clinic. Among other extracurricular activities, Alex won a place in the law school’s Brendan Moore Trial Advocacy Center. She competed successfully in three inter- and intra-school trial competitions, and now she helps run the advocacy center.
Jason, another graduating Stein Scholar, has trained to become a public defender. He worked the first summer in a state prosecutor’s office and the second summer in the Legal Aid Society’s criminal defense practice. He, too, elected relevant classes and engaged in experiential learning in a criminal defense clinic. Last year, Jason published a law journal note on evidence law that grew out of his paper in the seminar on ethics in criminal advocacy. Like Alex, he participated in the law school’s trial advocacy center, was a success in intra- and inter-school trial competitions, and now serves in a leadership position. He has also volunteered in a prison visitation project organized by the Legal Aid Society.
For these students, training to become a trial advocate occurred primarily outside the traditional curriculum and much of it occurred outside the classroom. Working in prosecutors’ and public defenders’ office offices enabled them to develop lawyering skills, learn to exercise judgment and assimilate professional values through observation of, and interaction with, experienced lawyers working on real matters. Spending weeks preparing for trial competitions with advice, feedback and critique from experienced practitioners gave them a chance to further develop their skills in a simulated trial setting. Participation in clinical courses, besides enhancing their skills and professional development, ideally prepared them for a professional lifetime of ongoing learning.
When graduating students such as Alex and Jason become prosecutors or public defenders, they will receive further training and supervision on the job. No urban DA’s office or PD’s office should just hand new hires a stack of files and say, “Go to it.” But graduates such as these, who have availed themselves of a range of opportunities to “learn by doing,” will be far better prepared for practice than were their counterparts 20 or 40 years ago or even five or 10 years ago.
Challenges Going Forward
Today’s law schools face various challenges in preparing students for practice, however. One is the high cost of a legal education, which leads some critics to urge contracting law school to two years. Even assuming two years are enough for the legal academic curriculum, however, little time would remain for the extracurricular work and summer employment that are so integral to students’ advancement. Many warn that the need to rein in tuition will make it hard for law schools to expand clinics and other experiential courses in which the student-teacher ratio is very low.
Ironically, licensing requirements, although well-intended, also pose challenges. Law schools differ just as law students do. Requirements that may be good for some law schools may constrain others’ ability to best educate their students for practice. Judge Jack Weinstein sounded this theme more than 30 years ago, urging courts to help law schools when the academic community asks for help, but not to force law schools to change in order to compensate for perceived deficiencies in the profession.9
Perhaps the most serious challenge is the limited supply of internships and summer jobs that help students develop their skills, knowledge, values, judgment and sophistication. Judges, government law offices and public interest offices already do their part. They welcome students to serve as interns during both the summer and the academic year and dedicate time to training and supervising students to make the internship a meaningful educational experience. But positions in private law firms are hard to come by for many students other than those who attend the most highly ranked law schools. And private practitioners may not undertake any particular responsibility to educate students whom they employ. In the end, law schools’ ability to do much more to ready their students for law practice may depend on the further willingness of the profession, and particularly the private bar, to assist in the effort.
Bruce A. Green is the Louis Stein Professor at Fordham Law School, where he directs the Louis Stein Center for Law and Ethics.
1. Herbert L. Packer & Thomas Ehrlich, “New Direction in Legal Education” 14 (1972).
2. Walter Gellhorn, “Current Trends in Legal Education and the Legal Profession—an Academician’s View,” 50 St. John’s L. Rev. 46, 440 (1975-76).
3. Legal Education and Professional Development—An Educational Continuum, Report of the [ABA] Task Force on Law Schools and the Profession: Narrowing the Gap (MacCrate Report) 234 (1992).
4. Id. at 235.
5. Id. at 3.
6. See, e.g., Robert J Condlin, “‘Practice Ready Graduates’: A Millennialist Fantasy,” available at http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=2376&context=fac_pubs.
7. William M. Sullivan et al., Educating Lawyers: Preparation for the Profession of Law (2007) (Carnegie Report).
8. Roy Stuckey et al, “Best Practices for Legal Education: A Vision and a Road Map” (2007).
9. Jack B. Weinstein, “Proper and Improper Interactions Between Bench and Law School: Law Student Practice, Law Student Clerkships, and Rules for Admission to the Federal Bar,” 50 St. John’s L. Rev. 441 (1975-76).