By H. Reese Hansen, Brigham Young University J. Reuben Clark Law School
On June 1, 2010, AALS President H. Reese Hansen wrote the following letter to Hewlett H. Askew, Consultant on Legal Education Section on Legal Education and Admissions to the Bar, regarding American Bar Association Standards Review Committee proposals.
The ABA and AALS have cooperated closely for many decades on important questions of legal education and the quality of American law schools. It has been a positive, productive relationship, and we are proud to be a partner of the ABA in working to make legal education a source of pride for American lawyers and a model for much of the rest of the world.
Needless to say, the AALS has a great interest in the work of the Standards Review Committee and the Council as you consider revising the ABA Standards for Accreditation of Law Schools. We welcome your invitation to comment on the proposals. Toward this end, I appointed an Advisory Committee to advise the AALS Executive Committee on potential issues raised by proposed changes in the Standards. Following the work of the Advisory Committee, the AALS Executive Committee has undertaken serious consideration of those issues. These deliberations produced three guiding principles that we propose which we hope will be helpful as the ABA continues its efforts to improve the Standards.
The first principle relates to a number of the changes that the Standards Review Committee has under consideration:“The Measure of a Law School is the Quality of its Full-Time Faculty.” One of the core values of the AALS is that its member schools value a faculty “composed primarily of full-time teacher/scholars who constitute a self-governing intellectual community engaged in the creation and dissemination of knowledge about law, legal processes, and legal systems, and who are devoted to fostering justice and public service in the legal community.” This commitment entails law schools having a substantial full-time permanent faculty that is responsible for, knowledgeable about, and actively engaged in legal education. That faculty must necessarily have academic freedom and security of position in order to be able to pursue their teaching, scholarship, and faculty governance responsibilities free of the threat of penalty for their particular views or because of the content of their work. A law school so composed, while not necessarily university-based, incorporates into the vision of professional education the values that have defined our great universities.
To illustrate the importance of a full-time faculty to a law school, a comparison to the world of law practice might be helpful. Imagine a law firm made up entirely of “of counsel” lawyers who are either in part-time retirement or devoted primarily to some other professional undertaking. Such a firm would be a far different kind of organization than what most law firms aspire to be. It would likely be less committed to firm organization and governance, strategic thinking, the articulation and implementation of a firm mission, the public service obligations of the firm and advancement of the profession more generally. While the analogy is not perfect, a law school run by a governing faculty made up largely of members whose primary affiliations lie elsewhere would also lack some of the same, critical attributes. This is not to say that adjunct faculty do not have an important role in law schools; they can bring needed specialized skills and experience to the classroom, just like “of counsel” attorneys can bring special skills and experience to a law firm. But adjunct and part-time faculty with primary commitments elsewhere cannot be expected to be fully invested in the school’s mission, governance, strategic thinking, curricular planning and development, creation of new and innovative teaching methods, service obligations, and institutional improvement.
Primary reliance on full-time faculty members also helps achieve a second AALS core value – “scholarship, academic freedom, and diversity of viewpoints.” Legal scholarship is essential to the improvement of our laws and legal system, because it identifies the strengths and weaknesses of that system and evaluates opportunities for improvement. Legal scholarship keeps the legal process self-reflective, self-aware and self-critical. In that sense, legal scholarship is essential to the improvement of our laws and legal system, and full-time law teachers play a crucial role in that enterprise. Scholarship comes in many forms – from foundational writing that helps change ways citizens think about an area of the law, through doctrinal analysis that may be directly relevant to how judges interpret laws or how legislators draft new laws, to analysis of the work of lawyers and the impact of law on clients and communities. As examples, legal scholars have been in the forefront of efforts to evaluate specialized courts, improve handling of juvenile offenses, and improve environmental regulation. Scholars have also led debates about such matters as the appropriate treatment of enemy combatants, the permissible scope of a police search, the standards that should apply in resolving a custody dispute, the limits on state seizure of private property for public uses, and the duties of employers with respect to sexual harassment. Without full-time law faculty engaged and committed to scholarship on these and countless other issues, deep generative research about law, the work of lawyers, and the impact of law on clients and society would not occur, and the quality of our laws and legal system would be the worse for it.
The scholarly activities of a full-time faculty also directly improve the quality of teaching in America’s law schools. Research gives faculty expertise that they impart to students. The engagement in research activity also models for students the importance of sustained inquiry and commitment to improving the law, legal processes, and legal institutions. Through their research faculty also model the value in exchange between people with diverse viewpoints – principles that are essential to the integrity and diversity of the legal profession.
A full-time, fully-engaged faculty also supports the need for a rich, evolving curriculum. The AALS is committed to “a rigorous academic program,” “strong teaching,” and “a dynamic curriculum that is both broad and deep.” Law schools should teach theory and practice, substantive law and process, rigorous analytical thinking, the exercise of professional judgment, approaches to problem solving, and applied skills. Students need a mix of broad survey courses and intense focus on particular issues. They need exposure to both domestic and international legal systems. Some courses should be required; students should be allowed to select among a menu of other, non-required courses. Shaping the mix of offerings and a program’s requirements, again, is best done by a core of full-time faculty that determines the teaching and research functions of the school. Our system may seem obvious to us, but the model of a professional legal professoriate is distinctive. It is one of the most important reasons why our legal education is respected across the world.
For these reasons, we are concerned about any revisions in the ABA Standards that might either undercut the basic structure of faculty governance of law schools by full-time faculty or weaken the academic freedom of faculty. Measures that would weaken or abolish the tenure and security of position requirements in the ABA standards are central to our concerns; such measures would inevitably contribute to a decline in effective faculty governance and undercut efforts to improve law school quality that only joint efforts by a dean and faculty working together can achieve. It is also unlikely that any substitute for tenure designed to protect academic freedom and faculty teaching programs will be as effective as tenure in protecting the internal balance of institutional governance or responding to external pressures law schools will certainly face. One example of outside pressure is the growing number of attacks some law school clinics have faced for representing unpopular clients. Preserving the principle of academic freedom is not only an AALS core value; it is an essential public value.
We have related concerns with measures that would make it more difficult to determine the extent to which a law school is functioning according to the model based on a full-time faculty described above. This concern extends to the proposal to eliminate the calculation of a law school’s student-faculty ratio. We are sympathetic with the fact that the calculation formula in the current ABA Standards can be hard to apply in a way that gives a true picture of available teaching resources, and we urge further effort to improve upon it. But we are concerned that eliminating student-faculty ratio data, however calculated, from the accreditation calculus is almost certain to move law schools in the direction of larger classes, fewer full-time teachers, or both. Such a move – however effective in an effort to reduce costs – would represent a terrible loss for both the legal system and for the very students in whose name the cost savings likely will be justified by depriving potential students of important information that could be obtained from reliable numbers that could come from the ABA.
In our stress on the importance of faculty role and faculty governance, we recognize that, if anything, law school decanal leadership is becoming even more important. As demands of law school constituents become more varied and intense, prudent management of resources becomes ever more difficult. But we urge the ABA not to let the rhetoric of industrial production control the conversation about the minimal standards of a quality legal education. It is appropriate to ask whether legal education is worth its cost and whether law students are getting what they have been promised. But legal education is not primarily achieved by better managers. Lawyers are not “produced” or even “trained” by law schools. What lawyers must ultimately deliver is judgment – whether judgment about what action a client should take, judgment about what issues or materials are relevant, or judgment about how ideas should be expressed. That kind of mature judgment is primarily created by personal interaction between individual faculty and individual students in countless educational settings. What law schools ultimately deliver, in short, are not skills alone. What law schools deliver are graduates who have fundamentally matured into independent professionals as a result of rich, reflective and varied educational experiences.
The second accreditation principle that we commend to you is:“Don’t conflate clinical education with skills training.” The two ideas are quite different. One source of the confusion is that any mental process can be reframed as a skill (e. g., the skill of critical thinking). Clinical education and skills training are, however, quite different teaching concepts. Skills training focuses largely on discrete, concrete and quantifiable skills, typically taught in single courses aimed at those skills. This training can be beneficial to students and is a useful component of a complete legal education. But lawyers must act skillfully and ethically in the world based upon complex knowledge. The challenge for legal education is to develop a way to frame a broad and deep commitment to professional knowledge and education that draws upon what the AALS sees as an intellectual project that incorporates rather than isolates the skill dimension of legal education.
Most clinical education goes beyond the accumulation of practical skills. It aims at the integration of substantive and applied learning. Clinical courses are less add-ons to the traditional substantive curriculum than they are culminations of these courses, in which students reinforce and extend the learning in substantive courses to the practice context. Through these courses, students typically develop problem-solving skills, learn to exercise critical judgment, and enhance analytical thinking as they bring substantive law to bear on practice experience. They represent some of the kinds of integrative education that are highly praised in the Carnegie Report.
Integrative teaching methods and new approaches to law, lawyering, and legal practice are spreading throughout the curriculum at many schools. These efforts bridge traditional divisions in the curriculum and enhance not only the integration of skills and content, but also the relevance of other disciplines such as economics, psychology, history, and business. They have occurred because full-time teachers have exercised their responsibility for curriculum development as well as governance of their institutions more generally. These efforts, which the ABA and AALS have both helped to generate, continue to evolve and should be encouraged to percolate.
Our third principle is:“Do No Harm.” “Do no harm” is the first principle in medicine and we commend it as a key principle of lawyer regulation as well. Trying to measure outputs without reliable techniques to do so, for example, runs a real risk of producing data that is more misleading than helpful.
Our focus here is the pending proposal for greater reliance on outcome measures. We all agree that verifying student learning is central to the educational process; determining what students have gained from their legal education is everyone’s bottom line issue. We also agree that inputs often are imperfect, only “second-best” measures of student learning. Setting aside the difficulty of distinguishing in all cases between input and output measures, it is surely reasonable to say that an input measure such as passing a class in trial practice is at least some measure of learning trial skills. The same can be said for passing a course in property law or civil procedure. Our review of the literature suggests that no one has yet documented significant, reliable or valid outcome measures that would better measure what law schools do. Inputs theoretically may be “second best,” but so long as output measures are unreliable, we are very concerned that the proposed shift to output measures may replace one system of quality control with one that is even less effective.
Furthermore, not everything that can be measured is worth measuring. Unless output standards measure qualities that matter, they will do nothing to improve legal education and may even trivialize it. As a system of measurable outcome measures becomes institutionalized, there is a danger that pressure to define goals in measurable ways will lead law schools to move away from what matters most – i. e., the development of students’ analytical skills, professional judgment, and concern about public values. It is simply easier to measure a simplified image of learning than a complex one. While measurement of individual skills might work for activities that can be broken down into elements that can be taught as skills, it seems inevitable that mandating things that are measurable will distort, over time, what is taught and how it is taught.
Still further, while an outcome measures approach is, in part, a response to the desire for greater accountability of law schools to the students who pay high tuitions, compliance with the new approach will, without question, add to the cost of legal education. Some of the costs will be administrative, including the cost of developing measurement and assessment tools that satisfy the standards and establishing the reliability and validity of such tools. Still greater costs will be necessary if the shift to outcome standards makes a school feel it needs new programs and courses whose learning goals are more readily measurable.
Most important, we are concerned that the proposals before you may have a profound negative impact on the diversity of law school faculty, staff, and students. Our commitment to diversity springs from the benefits of diversity to a rigorous educational program, as well as to the need to educate lawyers who are broadly representative of society, and who, in turn, are able to reflect the importance of inclusion and non-discrimination in our society. The AALS has a clear commitment to diversity – in viewpoint, personnel matters, and composition of the student body and the legal profession. Substituting a vague and unreliable set of outcome standards for a system that is increasingly creating multi-dimensional learning opportunities for students and that has at least begun to achieve a measure of diversity in the legal profession seems to us to be unwise. “Do no harm” is a principle with which it should be hard to disagree.
To the extent that the impetus for reform of the accreditation standards is driven by a desire for curricular reform, it is important to underscore that innovation today characterizes the curricula of a great many law schools. Some schools have added an emphasis on the lawyering process in the first year, while others introduce first-year students to international issues, to exemplars of their profession, to different disciplinary perspectives, or to public service work. Clinical and skills courses that used to be focused on trial and pre-trial practice and oral advocacy now include a broad range of practice areas and introduce many aspects of the work of a lawyer, including fact-finding, interviewing, negotiation, contract drafting, administrative hearings, and transactional work. Practice areas such as tax, intellectual property, and bankruptcy now have clinical offerings. A few schools are even experimenting with an entirely new model for the third year, in which students integrate their substantive law learning with actual cases through a wide range of in-house clinical courses, placement clinics, externships, internships, and mentoring relationships with practicing attorneys.
Few would doubt that we are passing through a challenging time in legal education. The cost of going to law school remains high, the current recession has meant that available jobs for law graduates have been fewer, and law firms have faced sometimes conflicting directions from their clients about how they want legal services delivered. At the same time, we see this as one of the most exciting and creative times at U. S. law schools. There is curricular innovation and competition at schools all over the country as schools seek to attract the very best students by offering the most innovative possible ways to become lawyers. We believe that a shift in the standards to reliance upon formulaic outcome measures will stifle this kind of innovation by pushing schools to adopt curriculum and teaching methods that are most easily measurable.
When we reflect about why American law schools are so innovative and so well regarded around the world, it seems to us that, over the years, the self-study process required by accreditation standards has been one of the most important, positive factors in the improvement of legal education. In its self-study, a law school revises and affirms its mission, defines its distinctive identity, assesses its external environment, evaluates the strengths and weaknesses of its faculty, curriculum, intellectual life, facilities, technological support, communications, and resources, and sets short- and long-term goals. This process allows a law school to take account of the constituencies it serves, and its own goals and needs. Does the law school serve primarily the needs of residents of a given state or region, including a substantial number of sole practitioners or attorneys who practice in small firms? Does a school prepare more of its students for large, national or international law firm practices? Does a given school produce a large number of academics, or entrepreneurs, or public interest advocates?Does it have a religious mission, or a goal of meeting the needs of special populations, such as Native Americans, or the inner-city poor?Does it place a priority on criminal law practice?Or, does it wish to be a pioneer in alternative dispute resolution, international and comparative law, or constitutional theory? Done right, the self-study process takes considerable time, energy, and resources, but it is generally viewed as a productive undertaking, by helping the school to define its core values, evaluate its challenges and opportunities, articulate new initiatives, and set institutional priorities. An AALS concern is that a focus on measurable student learning outcomes in the ABA Standards will deflect a law school’s attention in the self-study process from the most fundamental questions about the school’s identity, assessment, and priorities, to those matters most susceptible to objective measurement.
Finally, legal education occurs in the context of preparing students to take their place in what is ultimately a public profession. While lawyers may primarily represent private clients, they inevitably do so in ways that have public consequences. Courts have long seen lawyers as among their “officers” in the sense that lawyers have a responsibility for helping achieve justice in ways that are reputable and honorable. And there has long been a consensus that more law enforcement is done by private lawyers counseling their clients to stay out of trouble than by enforcement officials charging clients who did not get the message. The public quality of private lawyers can never be wholly defined by reference to what private clients demand, and any decline in the excellence of law schools is likely to be seen first in that effect on lawyers’ public role. Beyond private practice, countless lawyers work in the public sector and on pro bono matters. We believe it is essential, in short, that before the accreditation standards are changed that there is certainty that the changes will, in fact, produce the desired results.
I end this letter as I began: The AALS Executive Committee has great respect for the efforts made by the ABA to improve the quality of legal education over many years. We appreciate your openness to suggestions and hope you will take the comments in this letter as simply the first phase of a continuing dialogue. We look forward to continuing our common effort to keep U. S. legal education the finest in the world.
H. Reese Hansen