Under the leadership of outgoing American Bar Association President James R. Silkenat, the Association took a major step in the right direction this year by recognizing that the crisis in American legal education represents the crossing of problem with opportunity.

We are a nation in which many millions of Americans can’t find lawyers to help effectively access justice. At the same time, hundreds of thousands of lawyers can’t find legal jobs. Can’t we bridge this gap?

Silkenat’s Legal Access Job Corps has developed a powerful video that identifies the problem and a number strategies to help, including more pro bono work though law school clinical legal programs, matching recent grads with retiring solos, legal incubators, and non-traditional practice models:

These are great ideas.

But, as much as I value them and like the video, I can’t watch it without wondering why few so people seem to recognize the elephant in the room. There is huge unmet need for legal services. Yet nary a law school in the country that takes up the challenge and capitalizes on the underutilized third year. That year should be used to teach the practical skills and knowledge required to set up and run a law practice. Even armed with the right stuff, new law graduates would not normally be competitive in the high end of the market. But they could serve the vast under-served market: middle and lower income families.

I think I know why: The ABA Section of Legal Education and Admissions to the Bar sets the rules for the accreditation law schools. Its Council and Accreditation Committee are recognized by the U.S. Department of Education as the national accrediting agency for programs leading to the Juris Doctor degree.

As a practical matter, the Section itself is controlled by law school deans and tenured faculty. The Section’s Bylaws provide that “[n]o more than fifty percent of the voting members of the Council may be persons whose current primary professional employment is as a law school dean, faculty or staff member.” (Bylaws, Article IV, Section 3). The Council meets that standard, but including former academics, fully half of the Council are drawn from the ivory tower.

Naturally, most academics value their own work, which is fundamentally theoretical academic scholarship. Few law professors have deep experience in the practice of law. It would be hard for them to teach what they do not know.

We have only to look this year’s action in the House of Delegates to see that Section leadership has an ivory tower view of the accreditation standards.

In 2008, the Section began a comprehensive review of the Standards for the Approval of Law Schools. The resulting amendments were presented to the House of Delegates at this year’s annual meeting, as Reports and Resolutions 103A an 103B. The amendments simply don’t represent significant movement towards requiring or even supporting practical legal education.

One part of the proposal met with a critical reception from the House of Delegates. In Interpretation 305-2, the Section proposed to prohibit accredited law schools from granting credit to law students for participating in a clinical experience if the students are paid for their work. The Section’s argument is that paying law students creates a material conflict of interest between the students’ interest in education and the clinical supervisor’s interest in getting work done for clients. That argument reflects a failure to appreciate the realty that this tension is inherent in all clinical placements, paid or unpaid.

Thanks to strong advocacy by law students and young lawyers, the House refused to concur with the Section’s interpretation.

But even on such a narrow issue, the Section Council —  not the House — gets the final word. U.S. Department of Education regulations require that the Section be independent of the ABA in meeting its accreditation responsibilities. So, the Council’s recommendations on law school accreditation standards and interpretations are subject to a maximum of two referrals from the House back the Council. Thereafter, a Council decision would stand without House of Delegates approval.

What does it all mean? Using the third year of legal education to actually teach students the basics of practicing law — and thereby enabling them to move from graduation directly into filling the access to justice gap — would be expensive and difficult. To make such a fundamental transition, the accreditation standards would have to require practical legal education.

Sadly, such significant change is not on the horizon.



The American Bar Association’s incoming President, William C. Hubbard, delivered an eloquent speech at the 2014 Annual Meeting last Monday in Boston, calling among other things, for change in our criminal justice system.

It’s a system that incarcerates too many people, for too long, with an impact shocking it its disparate effects on members of racial minority groups.

As Hubbard noted, by imposing devastating collateral consequences, the system goes on to deny those who have served time the opportunity to become law-abiding citizens.  

Hubbard called upon the bar to reach out to government leaders and urge action on criminal justice and sentencing reform. He pledged that the Association would work “to eliminate artificial barriers for those who have served their time.” You can see a portion of his statement here:

Thank you, William for highlighting this important issue.

There is much work to be done to make real progress and as Hubbard put it, to “establish justice, not for some, for all.”


You can see Hubbard’s inauguration and full remarks here:


Chief Justice John Roberts Addresses the ABA House of Delegates: “No Person, No Matter How High, is Above the Law.”

August 11, 2014

Chief Justice Roberts addressed the ABA House of Delegates at the 2014 Annual Meeting today to begin a year of celebration of the 1215 signing of Magna Carta. He traced the history of Magna Carta as essentially the settlement of a squabble between a venal king and his feudal barons. He noted that Magna Carta […]

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The Judge of Your Swing: Reflections on the 2014 Annual Meeting of the Uniform Law Commission

August 3, 2014

I’ve been at home for two weeks from the 2014 Annual Meeting of the Uniform Law Commission in Seattle. It seems like I have not had a moment’s breath since I returned. But sometime, probably in my sleep, I have begun to integrate my experience at the meeting into my customary way of seeing the […]

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Vermont Senators Leahy and Sanders Honor Gov. Hoff

July 18, 2014

Post Updated with Video Clips from the Floor of the United States Senate WASHINGTON, July 17 – In joint remarks before the U.S. Senate today, Sens. Patrick Leahy (D-Vt.) and Bernie Sanders (I-Vt.) honored former Vermont Gov. Phil Hoff, who just turned 90 years old. Hoff served three terms as governor. First elected in 1962, […]

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The Uniform Law Commission Meets Thursday July 11, 2014 in Seattle, Washington

July 10, 2014

The Uniform Law Commission begins its 2014 Annual Meeting on Thursday July 11, 2014 at the Westin Hotel in Seattle, Washington. Meeting in its 123rd year, the Commission, also known as the National Conference of Commissioners on Uniform State Law, faces a challenging agenda. More than 270 lawyers, judges and law professors — appointed as […]

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Thank You to the Barre Historical Society and the Vermont Labor History Society for Celebrating Phil and Joan Hoff

June 30, 2014

In 1962, I lived with my parents in Rutland, Vermont. One day early in the fall, I was at home, out sick from school. I was nine years old. There was a knock at the front door. Although I was in my pajamas, I raced to answer it. I opened the door and found an […]

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“Dogs Have Their Rights,” But Does Every Dog Get One Bite?

June 16, 2014

In talking about liability claims and dog bite cases, it’s often said that “every dog gets one bite.” I know of no Vermont Supreme Court case that literally applies that rule, but it is the conventional wisdom. And it seems to be the rule of thumb applied by insurance adjusters: if the dog has a […]

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The Signing Ceremony H. 413, the Vermont Uniform Collateral Consequences of Conviction Act

June 13, 2014

The signing ceremony for H. 413, the Vermont Uniform Collateral Consequences of Conviction Act, is now available. Here it is:   Rich

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The Vermont Uniform Collateral Consequences of Conviction Act Becomes Law

June 11, 2014

In a Statehouse ceremony yesterday, Vermont Governor Peter Shumlin signed H. 413, the Vermont Uniform Collateral Consequences of Conviction Act. Governor Shumlin thanked the many who were involved in the getting the legislation passed, and noted that it was part of a trend towards creating a smart criminal justice system. I took a moment to […]

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