If It Ain’t Broke….

Ken AshfordEducationLeave a Comment

Via Mom, comes news of a push in New Hampshire to scrap the traditional bar exam for a two-year clinic-like program:

Yesterday, officials of the state legal system and the Franklin Pierce Law Center gathered at the state Supreme Court to celebrate an alternative: a new program of classes, clinics and externships at Franklin Pierce that will focus on practical experience and will allow its graduates to obtain law licenses without having to sit for the bar.


"If we do it well, thanks to you, we will be a model for the whole United States," Justice Linda Dalianis told the 15 students of the inaugural class of the Daniel Webster Scholar Honors Program during a ceremony yesterday.

The idea for the program was born in 1992, when the American Bar Association released a report that found gaps between students’preparation in law school and the work expected of them when they started practicing at firms.

"One of the problems then was that when new lawyers got out of law school . . . on average, they weren’t getting as much mentoring as someone who got out of law school 30 years ago, like I did,"Dalianis said after the ceremony.

Okay.  How does it work?

Participants will be required to take certain courses, such as taxation and wills, that are electives for the rest of the student body. A lot of their time will be concentrated in the school’s clinics, which assign them to work on real cases.

They will also serve externships with law firms, judges or corporations to see how professionals deal with their clients. At the end of the program, they will have to present and defend a portfolio of work.

The students and the program will be evaluated frequently by officials from the bar association, by bar examiners, by professors and by the initiative’s executive committee, which includes both Dalianis and state Justice James Duggan.

John Garvey, the director, said the oversight will amount to a cumulative bar exam. At the end, successful students will be fully prepared to enter the profession and they will be eligible for a license allowing them to practice law in New Hampshire, as well as in Maine and Vermont, which honor New Hampshire licenses.

I recognize the problem, and it’s a real one.  There is a huge difference between knowing the law, and practicing it.  Traditionally, law schools do a poor job at the latter, although it is not as bad as the article suggests.  Most top law schools already offer clinical programs, internships, and allow — even encourage — students to work on real cases.

But the legal marketplace has absorbed this flaw in the system.  Most law firms have their own formal or informal mentoring system.  There’s no substitute for actual experience, and law schools cannot provide that.  Let’s be honest: a person out of law school for one year is going to be a bit of a neophyte, and no amount of artificial clinical work is going to prepare him properly.

Secondly, a lot of people go into law school with absolutely no intention of being a lawyer, or certainly not a litigator.  Suppose I wanted to go to law school to become a real estate attorney.  Exactly what good would it do for me to spend a year performing legal aid functions for the poor?

I’m all for students being educated on the practice of the law.  And I think "hands-on" legal experience could be made a requirement for admission to the bar.  But not at the expense of the bar exam which, for all its flaws, tests knowledge of the law.

I’ve forwarded the article to several law professors to see if any of them chime in.  I’ll update this post (below the fold) if they do.