Plenary I Where have we been? Where are we going? James Backman and Sandy Ogilvy

Historical Overview of Externships Era of Apprenticeships (1800 to 1900's) Era of CLEPR Funding (1960's to 1970's) Era of Minimal Regulation (1973 to 1986) Era of “Highly Structured” Regulation ( ) Growing Influence of MacCrate Report - ( ) Era of Flexible Regulation (2005 to ????) Future -- De-regulation of Externship Programs (????)

Peter A. Joy, Evolution of ABA Standards Relating to Externships: Steps in the Right Direction? 10 Clin. L. Rev. 681 (2004) (Hereinafter Joy). J.P. Ogilvy & Robert F. Seibel, Externship Demographics Redux (Feb. 10, 2006) (Hereinafter Ogilvy) Am. Bar Ass’n, Standards for Approval of Law Schools, Standard 305. James H. Backman, Where Do Externships Fit? A New Paradigm Is Needed: Marshaling Law School Resources to Provide an Experiential Education Externship for Every Student (accepted for publication in Journal of Legal Education, 2006).

Era of Apprenticeships (1800 to 1900's) ABA created in 1878 – “equating the time spent in law school classrooms with the time required in law office practice apprenticeships” (Joy, 687) The third new standard, Standard XIV, addressed “additional means and methods of law training,” to be considered “in addition to the regular courses in the curriculum … 2. Legal aid clinic … 6. Part-time law clerk service to judiciary 7. Sponsorship or apprenticeship system” (Joy, 691)

Era of CLEPR Funding (1960's to 1970's) (1959) “Thirteen of the schools in this … study reported clinics located inside the law schools and the rest [22 of 35] were located outside of the law schools.” (Joy, 692) Council on Education in Professional Responsibility (COEPR). “Half of these grants were for summer internships.” (Ogilvy, n.26) CLEPR “found 48 law schools had a Law School Clinic … The report found that 63 law schools had some form of externship” (Ogilvy, 9)

Era of Minimal Regulation (1973 to 1986) 1973 – Standard 306 – “studies or activities away from the law school … (b) must be approved in advance … (c) must be conducted or periodically reviewed by a member of the faculty” Interpretation 1 of 306(a): “lack of substantial supervision given by a law school faculty to law students working with practicing lawyers throughout a state does not conform with Standard 306(c).”

Clinic-based Model: 1980 Guidelines – Association of American Law Schools—American Bar Association Committee on Guidelines for Clinical Legal Education, Clinical Legal Education “establish a structure that requires substantive educational objectives; a classroom component; faculty responsibility for determining and overseeing … substantive objectives; and faculty responsibility for supervising cooperating attorneys”

Apprenticeship-based Model: 1985 – Report on Placement Clinics and Related Matters from Marilyn V. Yarbourgh, Chair, ABA Skills Training Committee, to Council of the Section on Legal Education and Admissions to the Bar: “Law students want placement clinics because they provide real world experience and enhance job placement opportunities. The legal profession wants placement clinics because they are one sign that law schools are moving in the ‘right direction’ and because some lawyers want to be involved in legal education and some want to have a free source of labor. Law School administrators want placement clinics because they keep their student and lawyer constituencies happy and they improve their competitiveness in the placement market.”

Vs. Clinic-based Model: 1985 Skills Training Committee: “some schools have established placement clinics primarily in response to these factors and not because of any belief that they offer valuable educational experiences. “…Clear, specific educational objectives should be articulated. The learning experience should be structured; supporting materials should be provided and discussed; and the students should be forced to reflect on their experiences and demonstrate their levels of comprehension and improvement.”

Era of Highly Structured Regulation ( ) – Interpretation 2 of Standard –Interpretation 2 of Standard 306 (d) …as the number of students involved or the number of credits awarded increases, the level of instructional resources devoted to the program should also increase – Standard 306 was renumbered Standard 305…former Interpretation 2 of Standard 306 became Interpretation – “much of what was previously in Interpretation 2 of Standard 306 was raised into the text of Standard 305, so that the ABA made new sections (e) and (f).” (Joy, 703)

Faculty Responsibilities conducted or periodically reviewed by a member of the faculty substantial supervision given by a law school faculty (eliminated in 1995) identifying substantive educational objectives; determining and overseeing the accomplishment of the course’s objectives; supervising cooperating attorneys in fulfilling their teaching responsibilities approved by the same procedures established … for the approval of other parts of its academic program and shall be reviewed periodically A member of the faculty must periodically review any program conducted by a field instructor Should consider the time devoted by the student… the tasks assigned to the student, selected work products of the student, and the field instructor’s engagement of the student on a regular basis in a detailed evaluation of the student’s experience.

Faculty (continued) Accreditation Committee should consider: Adequacy of instructional resources Involvement of full-time faculty as the number of students involved or the number of credits awarded increases, the level of instructional resources devoted to the program should also increase The full-time faculty must review the program periodically to ensure that the law school and the faculty exercise their responsibilities … and that it meets the stated educational objectives.

Faculty (continued) There shall be some established and regularized communications among full-time faculty, students and field instructor during the field placement experience. An on-site visit by full-time faculty during the course of each field placement is preferred. The field instructor should participate with the full-time faculty in the evaluation of the student’s academic achievement. In conducting the review of the program … required by Standard 306(c), the full-time faculty member shall consider … : –The time devoted by the student to the field placement, –The tasks assigned to the student, –Selected work products of the student, –The field instructor’s performance Teaching credit shall be given commensurate with the instructional responsibilities of the full-time faculty member in relation to the number of students and the credit hours granted.

Faculty (continued) In extraordinary circumstances a school may apply to the Committee for a variance from this Interpretation to permit a law school administrator or part-time faculty member whose experience makes him or her qualified to serve the functions of a full-time faculty member within the meaning of Standard 306 A written appraisal of each program shall be conducted at least every three years by the law school to evaluate whether the program is meeting its stated educational objectives. The school shall ensure that there is careful and persistent full-time faculty monitoring of the academic achievement of each student.

Faculty (continued) faculty member means a member of the full-time, part-time, or adjunct faculty. When appropriate a school may use faculty members from other law schools to supervise or assist in the supervision or review of a field placement program. The adequacy of instructional resources, including whether the faculty members teaching in and supervising the program devote the requisite time and attention to satisfy program goals and are sufficiently available to students;

Faculty (continued) Interpretation 305-3: –A law school that has a field placement program shall develop, publish and communicate to students and field instructors a statement that describes the educational objectives of the program. –In a field placement program, as the number of students involved or the number of credits awarded increase, the level of instructional resources devoted to the program should also increase.

Classroom Component – “A CLEPR survey that examined clinical and other extra-classroom experiences in law schools … The report divided externship experiences into General Placements, Selected Placements, and Class with Field Component…. With respect to the Class with Field Component category, students were enrolled in a substantive law course and were required to engage in extra-classroom activity, such as handling cases or doing empirical research.” (Ogilvy, 9-10) 1980 – conducting a classroom component (Guidelines)

Classroom Component (ABA) In those field placement programs that award academic credit in excess of six credit hours per semester, the following additional criteria apply: 1) a classroom component is required. If the classroom component is not contemporaneous, the school has the burden of demonstrating that its alternative is a functionally and educationally equivalent classroom experience involving full-time faculty. The alternative may be a meaningful pre- or post-field placement experience involving full-time faculty. The classroom component may be satisfied by regular tutorials conducted by the full-time faculty A contemporaneous classroom or tutorial component taught by a faculty member is preferred. If the field placement program awards academic credit of more than six credits per semester, the classroom or tutorial component taught by a faculty member is required; if the classroom or tutorial component is not contemporaneous, the law school shall demonstrate the educational adequacy of its alternative (which could be a pre- or post-field placement classroom component or tutorial).

Site Visits 1993 – visits to field placements An on-site visit by full-time faculty during the course of each field placement is preferred. If more than 6 credits: This shall include an on-site visit in each field placement by full-time faculty in the course of the field placements. The school shall document this monitoring … The visits to field placement or other comparable communication among faculty, students and field instructors … Periodic on-site visits by a faculty member are preferred. If the field placement program awards academic credit of more than six credits per academic term, an on-site visit by a faculty member is required each academic term the program is offered.

Growing Influence of MacCrate Report - ( ) … “during the same period, the ABA modified the Standards for Approval of Law Schools to emphasize ‘real-life practice experiences’ and greater emphasis on lawyering skills instruction and published the MacCrate Task Force Report, which, inter alia, called upon the law schools to provide more instruction in the skills and values of the profession. Law schools may have reacted to the leadership of the ABA by creating more opportunities for students to participate in externships” (Ogilvy, 16-17)

Era of Flexible Regulation (2005 to ????) 2005: Amendment to Standard 305(e): (proposed Dec. 16, 2003): Faculty Involvement: 2005 – (e)(2)Adequate instructional resources, including faculty teaching in and supervising the program who devote the requisite time and attention to satisfy program goals and are sufficiently available to students; (e)(3)A clearly articulated method of evaluating each student’s academic performance involving both a faculty member and field placement supervisor; (e)(4)A method for selecting, training, evaluating, and communicating with field placement supervisors;

Definition of Faculty ABA 305(c) 2005 – Each student’s academic achievement shall be evaluated by a faculty member. … ”faculty member” means a member of the full-time or part- time faculty. When appropriate a school may use faculty members from other law schools to supervise or assist in the supervision or review of a field placement program.

Classroom Component ABA 305(e)(7) Opportunities for student reflection on their field placement experience, through a seminar, regularly scheduled tutorials, or other means of guided reflection. Where a student can earn four or more academic credits (or equivalent) in the program for fieldwork, the seminar, tutorial, or other means of guided reflection must be provided contemporaneously.

Table I Percentage of Schools with an Externship Course Survey Year and (Sample Size) Schools reporting one or more externship course Schools reporting multiple courses Number of ABA- accredited law schools (N=6885%29% (N=108)98%70%186 Webpages %n/a186 (N=Surveys from ABA-accredited schools)

Table II Number of Courses By Number of Credits Awarded Courses with reported data: , N=98; , N=264 Number of schools: , N=58; , N=106 (Totals are greater than 264 and 98 because some courses cross credit categories) Credits %83%16% (>6) % (179) 82% (271) 45% (119) 26% (68) 12% (32) 9% (25)

Table III Courses with Classroom Components By Number of Credits Awarded

Table IV Nature of Placements Schools Offering at Least One Externship Opportunity

Table V Nature of Placements II

Table VI Hours of Fieldwork Required Each Week for Every Hour of Course Credit

Table VII Length of Class Sessions (Hours/Week)

Table VIII Number of Journal Entries Required During a Semester by Credits Awarded ( )

Table IX Percentage of Courses Utilizing Letter or Number Grades or Pass/Fail Grades for the Classroom Component, Fieldwork Component, or Both

Table X Evaluation of Placements

Table XI Evaluation of Placements Use of Site Visits by Credit Category

Table XII Faculty Status

Table XIII Administrative Support of Externship Programs

Site Visits ABA 305(e)(5) Periodic on-site visits or their equivalent by a faculty member if the field placement program awards four or more academic credits (or equivalent) for fieldwork in any academic term or if on-site visits or their equivalent are otherwise necessary and appropriate;

Where Are We Going? Reduced Barriers to Entry E.g., Classroom component to reflection, Periodic site visits from 6+ to 3+ Summer/International Full time and Distant Programs More Placements with Private Law Firms Differences between Introductory and Capstone Experiences

Results of Increased Flexibility Newest programs have high student numbers – Appalachian, Nevada Las Vegas Numerous schools have distant placements including international Summer and full-time programs expanding More placements with private law firms

Alternative Approaches Opportunities for student reflection: Seminar (Classroom Component) Regularly Scheduled Tutorials or Other Means of Guided Reflection (Journals) On-Site Visits or Their Equivalent Periodic Otherwise necessary and appropriate Expanded Definition of Faculty

Wide Acceptance Out From Under the Shadow of Clinics 20 Years of Standards Created Legitimacy Increased Instructional Resources and Faculty Involvement Expansion Beyond Regular Semester for Summer and Full-time Programs Expansion Beyond Local Placements Higher Student Participation