Bar exams moved online during the pandemic, fueling attention to issues under discussion, such as widely varying bar pass rates from state to state, and large costs to graduates of prep courses needed even after three years of law school.
Law school administrators and members of the profession wrung their hands: Are we really turning out so many graduates incompetent to practice law?
Some modest reforms are under way. There’s a next generation bar exam on the horizon that diverges a bit from the old style. But a lot of state bars are still just thinking about it, and bar exam modifications continue to be (rightfully) criticized.
And in the midst of this debate, along came ChatGPT—never a law student—and passed the bar exam. Academia is in turmoil over the significant potential for AI-assisted papers and exams.
Out of the chaos sown by these developments, might we possibly reap a whole new perspective on how to train lawyers? It is, after all, overdue to reform legal education, which has changed only marginally for many decades.
Of course law students still need to learn legal doctrine, and how to find and understand case law, statutes, and regulations. And clinical legal education, which is now often a graduation requirement, has been a valuable addition to legal education.
But should law school consume three mostly-classroom years and then be followed by a bar exam that requires lots of memorization and lightning-fast essay and multiple-choice responses that don’t reveal the kind of in-depth thinking attorneys are called on to do? Especially considering the great expense in time and money for law school and then bar prep?
What should we be teaching and then, if not testing, evaluating? A long and well-researched report from 2020, “Building a Better Bar: The Twelve Building Blocks of Minimum Competence,” suggests a helpful framework to answer that question.
Most critically it focuses much attention on what we in the legal academy have mostly failed to teach: the actual practice of law. It’s about time we do so.
Consider medical education. It begins with two years immersed in the textual, classroom, and lab study of subjects necessary to the practice of medicine. Then students progress to two years learning the clinical—the actual—practice of medicine, even before years of post-graduate residency training. And some medical schools are even introducing clinical practice into those first two years.
What would “medical model” legal education look like?
Lawyers for America, invented at UC Hastings (now UC Law San Francisco), is a model that provides students with a different route to learning to be a lawyer while simultaneously helping to improve our country’s massive access to justice problem.
Ponder: Two years of classroom learning and a third year devoted entirely to a well-supervised externship with a legal nonprofit or government legal office. Given the current bar exam, summer is then devoted to study and the test, and then after the bar exam the fellows return for a full year of fellowship-paid work.
The participating organizations pay LFA enough to support the fellowship stipends—less than their cost of hiring a new lawyer, enabling the stretching of their always tight budgets. Bonus: They’ve already trained their new fellow for all of their 3L year. Supervisors are very committed to their training because fellows will soon be their colleagues for a year.
Our fellows so far have engaged in great public service through the program and have moved very successfully to careers. Many of the fellows have stayed in public interest or public service careers, some clearly achieving positions that just on the basis of grades and pedigree could have been difficult to obtain. Their excellent experience—and thus meaningful recommendations—has propelled them forward.
Can we do more to make law school-affiliated hands-on experiences not only necessary but sufficient for licensure as a lawyer? Or at least sufficient along with passage of a much-simplified written exam, perhaps focusing on a limited number of subjects chosen by each examinee from a larger selection, and with dramatically reduced emphasis on speed and memorization?
Alas, change comes hard both to legal educators and to bar examiners. We started LFA after a dean told us we should ask for forgiveness rather than permission, or the idea might never have moved forward. Other law schools have considered joining us and hit various barriers.
For their part, bar examiners have put together committees to recommend change, but things move slowly—if at all. A California Blue Ribbon Commission spent about two years and still couldn’t reach consensus on a non-bar-exam route to licensure. A subgroup of that commission has just prepared a lengthy draft urging a “portfolio bar examination” in hopes of obtaining full commission approval.
For a good starting point to consider change, law school administrators should look to the medical school model and take to heart the feedback in the “Building a Better Bar” report about the value of experiential learning in the careers of many law graduates.
We need to train lawyers for the needs of today, under the conditions of today’s world. Yesterday’s ways shouldn’t be forever.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Marsha Cohen is a professor at UC Law SF. She taught podium classes and for many years supervised an extensive Judicial Externship Program which fueled her interest in “medical-model” legal education, on which Lawyers for America was built.
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