Washington & Lee University School of Law (W&L) in Lexington, Virginia, has received much favorable publicity for its "experiential" third year curriculum. At W&L, the 3L year consists primarily of role-playing games, or in the more polished characterization of W&L law Professor James Moliterno, "elaborate simulation courses that we call practicums." (video at 1:15-1:18) Indiana University Law Professor William Henderson, a sometimes-law-school-critic, praised W&L's innovations so effusively that you would think that the Gem of the Slaveocracy had left every other law school choking on its dust and fumes. He said: "To use a simple metaphor, W&L is tooling around in a Model-T while the rest of us rely on horse and buggy."
Unfortunately, employers aren’t going along for the ride. The majority of W&L Law grads from the Class of 2012 failed to obtain full-time bar-required jobs within nine months of graduation. Indeed, if you rank schools by the percentage of the Class of '12 that obtained bar-required, full-time, long-term (one year or more, including clerkships) jobs that are non-solo and non-school-funded, W&L ranks in 119th, a shockingly bad outcome for a school that US News deems the 26th best.
Deborah Merritt recently published an important blog post at the Law School Café, which was excerpted at Tax Prof Blog, noting W&L’s disappointing results and proposing four possible explanations: (1) the connection between practical training and jobs is much smaller than practitioners assert; (2) employers may care less about practical training than they claim; (3) employers may care about experience, but want to see that experience in the area for which they’re hiring; and (4) the students may have developed higher or more specialized career ambitions than their peers at other schools.
My own explanation for W&L's failure is more straightforward: W&L’s version of experiential education is bullshit, and the practicing bar is not buying it. I strongly favor clinics and externships. But "elaborate simulations"? Building courses around role-play?
Consider Law 301P, the "Higher Education Practicum," which is described in W&L's course catalogue in these terms:
"The course will employ context based and integrative learning techniques as the educational format. Students will work in teams to represent students, faculty members, university trustees, university administrators, alumni student organizations, public interest groups, and other parties in a variety of hypothetical problems and exercises requiring strategic thinking, critical analysis of legal principles, and understanding of the cultural, political, and social traditions of American colleges and universities."Moliterno elaborates: "In the higher education practicum, for example, the students will meet with somebody playing the role of the University President. They may meet with someone playing the role of a disgruntled trustee of the University. They may meet with community members who are concerned about activities at the University." (video at 3:33-3:50) A student participant describes the role-playing fun:
""We want to sue! And we want to sue now! We need that $7 million donation! You are our lawyers, we need to do something," exclaimed the College’s President. I looked to my two colleagues. We all had that same look on our face: how were we supposed to tell the College President that suing the donor was a bad idea[?]. . .But all the cases in the world couldn’t prepare us for the look on the President’s face. I cleared my throat and delivered the news. I didn’t rely on the case law or complicated legal analysis. Instead, I told the President that taking this case to court would cost the College millions in litigation, it would upset donors and alumni, and it would kill the College’s reputation. . . He sat back, looking confused."Doesn't the fluent academese of the course description alone trigger one's skepticism? How does "understanding the cultural, political, and social traditions of American colleges and universities" lead to true practice-readiness? Is it likely that the "variety of hypothetical problems and exercises" i.e., the role-playing scenario played out by clueless kids pretending to be lawyers, is anything more than a farcical simplification and distortion of actual legal practice? Will a real live employer be impressed that a 3L persuaded a fictional University President that suing a fictional donor would damage its fictional reputation?
Professor Moliterno, whose CV boasts of his "Leadership Role in 3L Experiential Education Curriculum," has evidently not practiced law since 1982, and has been a full-time legal academic ever since (earning a cool $289,377 in 2011). So Moliterno is not exactly speaking from personal experience when he yaps about "the mastery of the complex mental processes of sophisticated lawyers" and about "adopt[ing] the analytical practices of sophisticated lawyers." (See this post, comment by Jim Moliterno, at Jun 21, 2013 8:41:45 PM).
Practicum. This is not simply a mock trial-- where it is, indeed, possible to construct a reasonable facsimile of the real thing for training purposes. This is mock everything. As I read the course description of the Higher Education Practicum, my gut reaction, no kidding, is that I would rather take a law school course in 19th century German philosophers.