The ABA should let law students earn academic credit for paid externships

|The Volokh Conspiracy |

In general, I am no fan of the American Bar Association's role in accrediting and regulating law schools. But the ABA deserves some credit for proposing a long-overdue reform to the system: rescinding its rule forbidding law schools from allowing students to get academic credit for work done on paid externships with outside employers.

This reform is simple common sense: the educational value of an externship does not depend on whether the student is paid or not. Moreover, allowing credit for paid externships is particularly valuable for poor students and others who may be having difficulty making ends meet. That's an especially significant advantage at a time when there is increasing (often justified) concern over excessive law school tuition. At the very least, the ABA should not forbid individual law schools from making their own decisions on this issue. Schools should be able to decide for themselves whether any given paid externship has enough educational value to justify awarding academic credit.

Unfortunately, the proposal has attracted strong opposition from some of my fellow law professors, particularly clinical faculty associated with the Society of American Law Teachers (SALT) and the Clinical Legal Education Association (CLEA). Their main argument is that allowing credit for paid externships would somehow undermine the academic value of external work, because paid externs are more likely to end up focusing their efforts on work of value to the employer rather than to their education:

"When students are on the payroll, the balance shifts from a focus on educational value to the student to one of economic value to the firm," said Kim Chanbonpin, spokeswoman for the Society of American Law Teachers (SALT), a chief proponent of the restriction. "[Without Interpretation 305-2] students may gravitate towards paid opportunities, thus undermining the training opportunities in the public service arena," Chanbonpin said.

In its comment on the proposed change (scroll down to pg. 70), CLEA contends that "When paying a student for taking a course, an employer is likely to assign tasks that will benefit the employer; those tasks are not required to benefit the student's educational growth."

It is true that employers usually take on paid externs to "benefit the employer" rather than purely out of altruistic concern for the students. But the same is true of unpaid externs. Very few employers are going to devote the time and effort necessary to supervise and train them just to provide "educational value to the student." In both cases, the employers' motives are irrelevant from the standpoint of legal education. What matters is what kind of work experience the students get.

If the externs are mostly copying files and fetching coffee, then we should not give them academic credit, regardless of whether they are being paid or not. If, on the other hand, they are doing substantive legal work that improves their skills and increases their knowledge of the law, then credit might be appropriate—regardless of whether the employer's purpose was to help the students or just to get "economic value" for itself.

In many cases, employers will want paid externs to do educationally valuable, substantive work precisely because it serves the employers' own needs. Doing so will often increase the value of the extern to the employer, and help attract better-quality externs in the future. To paraphrase Adam Smith, it is not from the benevolence of outside employers that we expect good externships, but from their regard to their own interest.

Moreover, learning to do work that creates economic value for employers and clients may sometimes be a particularly useful experience for future lawyers. Shocking though it may be, very few employers hire lawyers merely to benefit the lawyer. The legal profession just isn't that popular. Most people put up with lawyers only because they expect us to provide them with some kind of valuable service. A lawyer who doesn't learn how to provide value for employers and clients is unlikely to achieve much in the way of professional success.

As for the argument that allowing paid externships will drive students away from "opportunities" in "public service," students should be able to decide for themselves whether they believe that the advantages of the latter outweigh those of the former. Students with divergent interests and skills will naturally weigh this tradeoff in different ways. At least as a general rule, our goal in legal education should be to increase the opportunities available to students, not reduce them. Moreover, some public service organizations offer paid externships of their own, or have paid fellowships.

For a more detailed statement of the case for reforming the ABA rule, see this recent National Law Journal op ed by Thomas Wheatley, one of my current students at George Mason. As he points out, external employers may not be the only ones acting out of self-interest here. Much of the opposition to this reform comes from clinical faculty who run clinics where law students work for free. If students could get credit from doing paid externships, more would choose that option and fewer would participate in clinics. That, in turn would reduce the demand for clinical faculty, and diminish the pool of unpaid labor on which clinics depend.

That doesn't by itself prove that the clinical faculty members' opposition is either insincere or necessarily wrong. Some of the people on the other side of the issue also have self-interest on the line. For example, student supporters of the reform proposal have an obvious interest in being able to get credit for paid externships. But the interests at stake do mean that we should not assume that CLEA's and SALT's lobbying against the proposal is purely a matter of disinterested expertise to which the ABA and others should defer. Organized interest groups often come to assume that what benefits them is also good for the public interest. We law professors are not immune to that tendency.

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