American Legal American Legal Education in the Education in the

1970’s1970’sFuture of Legal EducationFuture of Legal Education

Professor Clark CunninghamProfessor Clark CunninghamSummer 2007Summer 2007

Tiffany D. WilliamsTiffany D. Williams

OverviewOverview

New Standards for Law School New Standards for Law School AccreditationAccreditation

Initiatives to promote tolerance and Initiatives to promote tolerance and diversity in law school (and ABA) diversity in law school (and ABA) admissionsadmissions

Beginning of the Clinical MovementBeginning of the Clinical Movement

Push for Relevance in the CurriculumPush for Relevance in the Curriculum

New Accreditation New Accreditation Standards ApprovedStandards Approved

April 1970-Accreditation Committee’s 1April 1970-Accreditation Committee’s 1stst Meeting Meeting Chaired by Richard W. NahstollChaired by Richard W. Nahstoll Subsequent Meetings in June & November of 1970 & April, Subsequent Meetings in June & November of 1970 & April,

June and November of 1971June and November of 1971 1971-Rules were submitted to the Councils of ABA 1971-Rules were submitted to the Councils of ABA

Sections before hey were formally introducedSections before hey were formally introduced 1971-Rules Submitted for the Section in Milwaukee1971-Rules Submitted for the Section in Milwaukee 1973 House adopted Standards1973 House adopted Standards 1974-James P. White becomes Consultant1974-James P. White becomes Consultant

First copy of First copy of Learning and the LawLearning and the Law published published 1977 The Council Voted to Accept Profit-Making Schools 1977 The Council Voted to Accept Profit-Making Schools

for Provisional Approvalfor Provisional Approval Current Standards: Current Standards:

http://www.abanet.org/legaled/standards/standards.htmlhttp://www.abanet.org/legaled/standards/standards.html

New ABA Accreditation New ABA Accreditation Standards (1973)Standards (1973)

Broad GoalsBroad Goals No arbitrary limitation on number of No arbitrary limitation on number of

law schoolslaw schools Address adequate school fundingAddress adequate school funding

Discourage universities from using the law Discourage universities from using the law schools as funding tools to ensure adequate schools as funding tools to ensure adequate fundingfunding

Nahstoll: “We did not want the ABA to Nahstoll: “We did not want the ABA to design, require or encourage law design, require or encourage law schools to be homogenous.”schools to be homogenous.”

Preamble to StandardsPreamble to Standards

Preamble to Standards, Preamble to Standards, cont.cont.

ABA Section on Legal ABA Section on Legal Education, Standards Education, Standards

Chairpersons in the 1970’sChairpersons in the 1970’s 1970-1971 MAXIMILIAN W. KEMPNER1970-1971 MAXIMILIAN W. KEMPNER

New York, New YorkNew York, New York 1971-1972 EDWARD W. KUHN1971-1972 EDWARD W. KUHN

Memphis, TennesseeMemphis, Tennessee 1972-1973 THOMAS H. ADAMS1972-1973 THOMAS H. ADAMS

Detroit, MichiganDetroit, Michigan 1973-1974 CHARLES D. KELSO1973-1974 CHARLES D. KELSO

Indianapolis, IndianaIndianapolis, Indiana 1974-1975 R. W. NAHSTOLL1974-1975 R. W. NAHSTOLL

Portland, Oregon Portland, Oregon 1975-1976 E. CLINTON BAMBERGER, JR.1975-1976 E. CLINTON BAMBERGER, JR.

Washington, D.C. Washington, D.C. 1976-1977 GEORGE N. LEIGHTON1976-1977 GEORGE N. LEIGHTON

Chicago, IllinoisChicago, Illinois 1977-1978 JOSEPH R. JULIN 1977-1978 JOSEPH R. JULIN

Gainesville, FloridaGainesville, Florida 1978-1979 SAMUEL D. THURMAN1978-1979 SAMUEL D. THURMAN

Salt Lake City, UtahSalt Lake City, Utah

Law School Enrollment in Law School Enrollment in the 1970’sthe 1970’s

1973 Enrollment Stats1973 Enrollment Stats 16% Women16% Women 7.5% Minority7.5% Minority

1974-157 law schools had a total 1974-157 law schools had a total enrollment of 110,713 studentsenrollment of 110,713 students

ABA Standards & Race ABA Standards & Race After After BakkeBakke

1976- Judge George N. Leighton becomes Section chairman1976- Judge George N. Leighton becomes Section chairman 1979-Jane Barrett creates the Minorities in the Profession 1979-Jane Barrett creates the Minorities in the Profession

CommitteeCommittee Council considered Council considered Standard 212Standard 212

““Consistent with sound educational policy and the Standards, the Consistent with sound educational policy and the Standards, the law school shall demonstrate, or have carried out and maintained, law school shall demonstrate, or have carried out and maintained, by concrete action, a commitment to providing full opportunities by concrete action, a commitment to providing full opportunities for the study of law and entry into the profession by for the study of law and entry into the profession by qualifiedqualified members of groups (notably racial and ethnic minorities) which members of groups (notably racial and ethnic minorities) which have been victims of discrimination in various forms. This have been victims of discrimination in various forms. This commitment would typically include a special concern for commitment would typically include a special concern for determining the potential of such applicants through the admission determining the potential of such applicants through the admission process, special recruitment efforts, and a program which assists in process, special recruitment efforts, and a program which assists in meeting the unusual financial needs of many such students, meeting the unusual financial needs of many such students, provided that no school is obligated to apply standards for the provided that no school is obligated to apply standards for the award of financial assistance different from those applied to other award of financial assistance different from those applied to other students.”students.”

See See http://www.pbs.org/wgbh/amex/eyesontheprize/story/22_bakke.htmlhttp://www.pbs.org/wgbh/amex/eyesontheprize/story/22_bakke.html for for more information about the impact of Bakke.more information about the impact of Bakke.

Social Activism Influences Social Activism Influences Legal EducationLegal Education

The social movements for the rights of African-Americans and women The social movements for the rights of African-Americans and women added new courses to the curriculum in civil rights lawadded new courses to the curriculum in civil rights law -- which for the -- which for the first time became a central topic in constitutional law -- and employment first time became a central topic in constitutional law -- and employment discrimination. A body of new social regulation, especially of the discrimination. A body of new social regulation, especially of the environment, created the demand for a new field of environment, created the demand for a new field of environmental law. environmental law.

Law schools in the South had admitted no black students, and law schools Law schools in the South had admitted no black students, and law schools in the North very few until the 1970s; in the North very few until the 1970s; since then black and Hispanic since then black and Hispanic students have made up about 10 percent of each class.students have made up about 10 percent of each class.

Law schools had strict quotas for women before 1970; between 1970 and Law schools had strict quotas for women before 1970; between 1970 and 1990, women went from 4 percent to 50 percent of law school 1990, women went from 4 percent to 50 percent of law school enrollments. enrollments.

To accommodate the new students, law schools in the 1970s and '80s To accommodate the new students, law schools in the 1970s and '80s doubled in size. doubled in size.

In the 1970s, law teachers began more aggressively to integrate other In the 1970s, law teachers began more aggressively to integrate other disciplines into research and teaching -- among them moral and analytic disciplines into research and teaching -- among them moral and analytic philosophy, social history, feminist studies, political science and philosophy, social history, feminist studies, political science and criminology. The most powerful and far-reaching alliances were between criminology. The most powerful and far-reaching alliances were between law and economicslaw and economics..

Robert W. Gordon, “Legal Education in the United States: Origins and Development”Robert W. Gordon, “Legal Education in the United States: Origins and Development”http://usinfo.state.gov/journals/itdhr/0802/ijde/gordon.htmhttp://usinfo.state.gov/journals/itdhr/0802/ijde/gordon.htm

Civil Rights Project at Civil Rights Project at Harvard University on Harvard University on Access and ActivismAccess and Activism

http://http://www.civilrightsproject.harvard.edu/research/lawmichigan/DiversityandLegalEduchttp://http://www.civilrightsproject.harvard.edu/research/lawmichigan/DiversityandLegalEducation.pdfation.pdf““Highly selective college and professional schools Highly selective college and professional schools

tended to have very small numbers of minority students tended to have very small numbers of minority students until the late l960s and early 1970s.until the late l960s and early 1970s. Their normal Their normal recruitment and selection systems did not produce recruitment and selection systems did not produce significant minority enrollments and many went through significant minority enrollments and many went through the peak of the civil rights era with very few minority the peak of the civil rights era with very few minority students.4 During the late l960's many universities students.4 During the late l960's many universities decided to undertake systematic efforts to increase their decided to undertake systematic efforts to increase their minority enrollments, often spurred by the social minority enrollments, often spurred by the social upheaval of urban riots, student protests, federal policy, upheaval of urban riots, student protests, federal policy, and the assassination of Martin Luther King. and the assassination of Martin Luther King. In the Ivy In the Ivy League, the percentage of black students grew between League, the percentage of black students grew between 1967 and l976 from 1.7% to 4.5%.51967 and l976 from 1.7% to 4.5%.5 There were similar There were similar or larger changes in a number of highly selective public or larger changes in a number of highly selective public universities. universities. These significant changes, at a time when These significant changes, at a time when access to leading universities was becoming much more access to leading universities was becoming much more competitive and the country more conservative, led to competitive and the country more conservative, led to opposition.”opposition.”

ABA & ToleranceABA & Tolerance

Standard 211 prohibits racial, sexual Standard 211 prohibits racial, sexual and religious discrimination in law and religious discrimination in law school admissionsschool admissions

Bar AdmissionsBar Admissions

1972 Multi-state 1972 Multi-state Bar Examination Bar Examination InstitutedInstituted An effort to An effort to

promote more promote more uniformity in uniformity in national bar national bar admissionsadmissions

The Clinical Movement The Clinical Movement BeginsBegins

1976- Devitt Committee Formed1976- Devitt Committee Formed To explore standards for admission to practice in To explore standards for admission to practice in

federal courtsfederal courts Clare Committee creates proposals (never adopted)Clare Committee creates proposals (never adopted)

Developed minimum educational requirements for Developed minimum educational requirements for attorneys going before the Second Circuitattorneys going before the Second Circuit

Evidence, criminal law and procedure, professional Evidence, criminal law and procedure, professional responsibility, trial advocacy, and civil procedureresponsibility, trial advocacy, and civil procedure

1979-Task Force of Section releases, “Lawyer 1979-Task Force of Section releases, “Lawyer Competency: The Role of the Law Schools” [The Competency: The Role of the Law Schools” [The Cramton Report]Cramton Report] Made 28 Recommendations addressed to law schools, Made 28 Recommendations addressed to law schools,

the ABA, bar admissions authorities, governmental the ABA, bar admissions authorities, governmental agencies, and lawyers regarding the improvement of agencies, and lawyers regarding the improvement of lawyering skills by improved education,lawyering skills by improved education,

Description of the Clinical Description of the Clinical Movement & MethodologyMovement & Methodology“In the 1970's and 1980's, Bellow and others started to construct a "common vocabulary of discourse on educational issues.” By focusing on clinical education as a method, clinicians began to explore what clinical teachers were and should be doing, how clinical teaching methodology could be infused throughout the law school curriculum, and what the purposes and goals of clinical teaching should be. Important early examples of clinical scholarship focused on clinical methodology, what it meant for students to assume and perform the lawyer's role in the legal system, how to identify and teach the elements of various lawyering skills, how to develop and explain theories of lawyering, how to refine and improve the supervisory process, and how to incorporate experiential learning theory into clinical law teaching.”

New York State Judicial InstitutePartners in Justice:

A Colloquium on Developing Collaborations AmongCourts, Law School Clinical Programs and the Practicing Bar

Introduction to Clinical EducationMay 9, 2005

http://www.courts.state.ny.us/ip/partnersinjustice/Clinical-Legal-Education.pdf

Curriculum ReformCurriculum Reform (a) the interest in international law in the 1950's and 1960's; (a) the interest in international law in the 1950's and 1960's;

(b) the revival of an interest in the social sciences in the 1960's; (b) the revival of an interest in the social sciences in the 1960's;

(c) the insistence on 'relevance' in the curriculum in the early 1970's, as (c) the insistence on 'relevance' in the curriculum in the early 1970's, as reflected in courses such as poverty law and consumer protection; reflected in courses such as poverty law and consumer protection;

(d) the Carrington Report of 1971, with its acceptance of the feasibility of (d) the Carrington Report of 1971, with its acceptance of the feasibility of a two-year curriculum and a clear demarcation between general and a two-year curriculum and a clear demarcation between general and advanced law studies; advanced law studies;

(e) responses to the articulated concern for deteriorating professional (e) responses to the articulated concern for deteriorating professional ethics, including various proposals for instruction in ethics; ethics, including various proposals for instruction in ethics;

(f) the clinical education movement of the 1970's and 1980's, with its (f) the clinical education movement of the 1970's and 1980's, with its proposals for broadened skills training and reduced reliance on appellate proposals for broadened skills training and reduced reliance on appellate case review as the basic methodology of legal education; and,case review as the basic methodology of legal education; and,

(g) the law and economics movement of the 1970's and 1980's, which (g) the law and economics movement of the 1970's and 1980's, which prompted both a reorientation of some traditional courses and the prompted both a reorientation of some traditional courses and the implementation of new advanced offerings.implementation of new advanced offerings.

John C. Weistart, The Law School Curriculum: The Process of Reform, 1987 DUKE L.J. 317 (1987).