Defining Competence: The Interplay of Legal Education, Accreditation, and Licensure

• In Event: Advancing Competency-Based Assessment: Evidence-Based Decisions

Abstract

As in other professions, employers in the legal profession are calling for early career lawyers with the necessary skills to be immediately effective in a professional setting(10). This paper presents factors affecting the adoption of competency-based assessments (CBAs) in legal education.
A focal point of the legal education environment is bar passage for law students and bar passage rates for law schools. For schools, this focus is embedded in accreditation standards from the American Bar Association (ABA) on programs of legal education (11). ABA Standard 316 emphasizes this by requiring “At least 75 percent of a law school’s graduates in a calendar year who sat for a bar examination must have passed a bar examination administered within two years of their date of graduation.” Law schools have been reluctant to increase their focus on experiential education and entrusted professional activities in their curriculum because licensure remains critical for accreditation.
Currently, competence in law school is frequently measured by summative assessments drafted by professors without clearly stated learning objectives and expressed outcomes guiding the development of said assessments; students’ GPA and/or class rank; and whether a student passes the bar exam. Consequently, competency in legal education leading up to the bar exam is reflective of a student's grades, regardless of whether those grades reflect professional competence. In fact, after the first semester or first year, students who fail to meet academic GPA requirements are at risk of being dismissed.
Accountability to employers and accreditors may push legal education to implement CBAs as there are new proposals for accreditation that support an increased focus on experiential courses and consistent learning outcomes across course sections. Specifically, ABA Standards now include requirements for course-level learning outcomes related to admission to the bar and professional responsibilities (Standards 301[b] and 302), providing experiential learning opportunities (Standards 303 and 304), and utilizing assessment methods of student learning (Standard 314).
There are generally three types of courses to satisfy the ABA's experiential credit requirement: legal clinics, simulations, and externships. Students are currently required to complete six credits, but the proposed changes would double this requirement. These are the courses where CBAs could be most easily adopted, but little is known about how these courses affect professional outcomes. This provides a chance to clearly articulate competencies and identify whether students are achieving them at various stages of legal education as we look to the profession's future.
While CBAs are not yet a focus in the law school environment, the new ABA accreditation standards are logically aligned with a competency-based framework (12). Granted, Standards 302 and 314 are not in full effect yet due to the recent changes to the standards and related controversies (13,14). The changing accreditation standards coupled with the impending advent of the NextGen Bar Exam (2026) signal that substantial curriculum shifts can be expected. NextGen specifically emphasizes “foundational lawyering skills” that employers desire, like legal writing and analysis, or client management (15).

Authors

• Jason Scott, AccessLex institute

• Andrea Pals, AccessLex Institute