St. Francis School of Law invited me to comment on whether law schools should be able to award credit for paid externships. Writing for The Volkokh Conspiracy law blog, in a piece entitled “The ABA should let law students earn academic credit for paid externships”, George Mason Univ. Law Prof. Ilya Somin embraces a pending ABA proposal to rescind its rule allowing law schools to award credit for unpaid student work experiences while disallowing credit if students are paid.  Here are my thoughts.

The ABA sets accreditation rules for the legal profession, endeavoring among other things to serve and protect the public by fostering quality services from the licensed practitioners who collectively constitute the Bar. Aside from issues of fairness (to law students), accreditation rules which disproportionately impact educational opportunities of law students are defective to the extent they handicap a segment of the future Bar.

Not all students are in the position to avail themselves of unpaid internship/externship legal work experiences. Under the current ABA scheme, law students who must rule out volunteer work for legal employers sacrifice potential academic credit for such work. The paid work that they are able to accept, given that it is carved out of the academic credit universe, so to speak, is thus not particularly designed for its educational benefits.

Persons that Prof. Somin’s article describes as “poor” – any student with obligations that necessitate the prioritization of income – are thus disadvantaged under the present rule. But, this is so not only with respect to the students themselves. To the extent financially needy law students must sacrifice academic credit and opportunity for competitive skills acquisition (not to mention résumé advantage) their future clients are disserved, as well.

Where academic credit is concerned, there is rigor and standardization in design and oversight of academic standards. The rationale behind the current policy discriminating against paid externships is that a paying employer’s prerogatives may give second shrift to educational values. Is this logical? Or might academic rigor imposed on creditworthy (paid) externships not simply create an incentive to compliance by externship sponsors?

Defenders of the status quo posit that if both paid and unpaid externships can get credit, students will not apply for unpaid work and unwarranted pressure will be brought to bear on sponsors. Is this logical? Would not valuable unpaid opportunities attract students? Allow sponsors who are able and willing to remunerate externs if such compensation no longer precludes credit to do so. Where resources are too limited, otherwise deserving externships would remain for credit only, but a result of the proposed ABA rule change would seemingly be a trend to more pay and more educational value.

Professor David Graubert teaches Constitutional Law I and II and Contract Drafting in St. Francis School of Law’s Online Juris Doctor Program.