The National Law Journal's Law School Review

A Law School Fantasy: Slashing Costs and Improving Preparedness

Dean Chemerinsky’s and Professor Jewel’s contributions both raise very important points about the challenges facing legal education reform. Personally, I'm in the camp of people who believe that the legal education model will change. However, it's apparent to me that changes must come predominately from outside of schools and the ABA Section of Legal Education. Survival instincts may prohibit even well-respected, well-meaning faculty scholars from adequately assessing the scope of the problems with the current law school model. But the increasing interest from U.S. Senators should signal to the uninitiated that law schools cannot continue to operate in a bubble. Nor can this discussion continue if everyone ignores the crux of the problem: intolerably high costs and an unacceptable number of unprepared graduates.

What would internal reform even look like if the two core goals are slashing tuition and improving preparedness? Part of the reason internal reform may be difficult to imagine, as Dean Chemerinsky pointed out, is because law schools are governed by faculty, and because substantial changes to the legal education model will alter "what [faculty] have to teach and do." That the Section of Legal Education is captured by similarly consumer-disoriented interests, despite overtures to the contrary, only aggravates the situation and observers. It bears repeating that the Standards Review Committee, Section of Legal Education, and Dean O'Brien in his posting do not once mention how important it is that the cost of obtaining a legal education drastically decline. Reducing costs cannot be the elephant in the room if this discussion is to carry any significance with the public.

Internal reform may also be difficult to imagine because increases in quality are typically tied at the hip to increases in costs. This attitude contributed to the current model and its explosive growth over at least the last 25 years. With little or no downward pressure on the cost of legal education, and a diversity of ideas about what it means to improve the student experience, law schools can introduce new features along with yearly tuition increases, knowing they will be rewarded for it in the U.S. News rankings.

On its face, the idea that costs can decrease while quality increases is fanciful. More to the point, there is substantial denial that there is a problem with the quality of education that law schools provide graduates. Such denial comes out in claims that the "law school crisis" is cyclical, not structural.

Like Dean Chemerinsky, I graduated (albeit this year) without being ready to practice law. Yet, not unlike many law school graduates, I still received a high quality education. This confirms Dean O'Brien's thoughts on the current state of legal education:

Legal education itself has never been in better shape in terms of the preparation that we provide future lawyers. In recent years, our schools have responded to suggestions by the bar and have substantially upgraded legal writing programs and practical skills opportunities. The process currently in place ensures that graduating lawyers are well trained for a variety of roles.

There are two important disconnects here. First, how can I claim that I received a high quality education and also say that people are wrong to deny there's a problem with the quality of education? Second, how can Professor Olivas claim that graduates are well trained for a variety of roles, despite the increasing reticence of clients to pay for junior associates? We can reconcile both sets of questions by examining how each claim uses a different metric to evaluate quality. The first claim in each set speaks to doing something well, but not necessarily producing graduates who are/feel ready to practice law.

This brings me back to the potential fantasy of reducing costs while improving quality. In our evolved-definition-of-quality world, we may find that the current pedagogy badly misses the mark. In this case, radical change may mean substantially changing the composition of legal educators, whose salaries and benefits make up a large chunk of law school operating costs. If faculty composition radically shifts to include more practitioners teaching as adjuncts in specific, practice-oriented classes, while tenured faculty must seek grants to continue their scholarly endeavors, we could see the costs of educating aspiring lawyers decline drastically.

— Kyle McEntee, executive director of Law School Transparency.

Why We Cannot Expect Change from the ABA

As Dean O'Brien writes, the ABA is currently considering a series of changes to how law schools report employment information for recent graduates.  Unfortunately, his statement of the problem raises doubts about this effort:

Though the number of institutions that fail to report employment data accurately is small, their actions hurt the credibility of our entire industry.  For that reason, the ABA Section on Legal Education and Admissions to the Bar (of which I am the current chair) has taken a fairly aggressive stance on addressing this issue, with job placement information now being reported directly to the ABA.  This will have positive impacts; the quality of the information will be better and the specificity of the data will increase.

The credibility of legal academia as a whole has suffered not owing to the bad conduct of a few law schools but because it has been widespread and systematic.  The problem is not that the information is inaccurate (though that is also a problem) but because it is stated in misleading ways.

Let me offer an example.  South Texas College of Law lists in the current US News profile its earnings quartiles for full-time private sector jobs as follows: $75,000 (25th percentile), $92,500 (median), $160,000 (75th percentile). That looks great. However, only 5 percent of the people employed in the private sector provided salary information. What this means is that those numbers represent 18 graduates (at most) out of a class of 376.

These numbers are "accurate" in the sense meant by Dean O'Brien, but there is a problem nonetheless.  Many law schools report salary numbers in problematic ways, including elite law schools, as I detail in this post.

The same kind of accurate but misleading information exists for the employment percentages reported by law schools.  As this article describes, law schools across the board have been advertising 90% to 100% employment rates in the past decade using all sorts of dubious methods.  Just about all of this was "accurate."  Meanwhile, as elaborated here and here, the true underlying picture is that as many as a third or more of law graduates during this period did not land jobs as lawyers.

Rule 7.1 of the ABA Model Rules of Professional Conduct specifies that "A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services."  A Comment adds, "Truthful statements that are misleading are also prohibited by this Rule.  A truthful statement is misleading if it omits a fact necessary to make the lawyer's communication considered as a whole not materially misleading."  A strong argument can be made that the salaries and employment rates law schools advertise fail this standard (setting aside whether it applies to law schools).

To my knowledge, the currently proposed reforms do not solve the misleading (though accurate) salary reporting problem, and the employment data for 2010 is less transparent (the ABA intentionally did not ask what percentage of the class obtained jobs as lawyers, nor what percentage of these jobs are part-time).  The reforms for 2011 will be an improvement, but if the data is reported in a manner that confuses prospective students (flooding them with details in a way that hides what is essential), the potential for misleading them will remain.

Genuine reform will not come until the ABA Section on Legal Education stops operating to protect law schools and instead serves a genuine regulatory function.

Brian Z. Tamanaha

With Much to Celebrate, Room to Improve in Legal Education

Educating the next generation of attorneys in a thoughtful, comprehensive, and practical manner is essential to the continued vibrancy of the judicial process, public policy, and the economy.  In addition to providing legal services and expertise in a wide range of job settings, new lawyers bring a fresh perspective, new ways of operating, and a focus on emerging issues.  Though the economy may present employment challenges, we must nonetheless be certain that legal education continues to evolve and excel. 

Legal education itself has never been in better shape in terms of the preparation that we provide future lawyers.  In recent years, our schools have responded to suggestions by the bar and have substantially upgraded legal writing programs and practical skills opportunities.  The process currently in place ensures that graduating lawyers are well trained for a variety of roles.

We are also proud of:

• Extensive pro bono work that assists underserved populations at a time of dwindling public financing for these needs
• Efforts to diversify the profession and to provide academic support to our students
• Improved career services assistance

Though we have much to celebrate, institutions of legal education must also strengthen some key standards across the board, including: 

• Honest and transparent reporting of employment data
• Fair and clear guidelines for earning and maintaining scholarships
• Improvements in the process for accrediting schools to maintain both high standards and the independence of each school

Though the number of institutions that fail to report employment data accurately is small, their actions hurt the credibility of our entire industry.  For that reason, the ABA Section on Legal Education and Admissions to the Bar (of which I am the current chair) has taken a fairly aggressive stance on addressing this issue, with job placement information now being reported directly to the ABA.  This will have positive impacts; the quality of the information will be better and the specificity of the data will increase.  In addition, I have proposed to our Standards Review Committee that they consider stricter requirements and consequences for compliance failure, including significant monetary penalties and loss of accreditation.

It is my belief that the entire community of legal educators shares my willingness to look at our profession with a critical eye, identifying opportunities to build on our strengths, limit our weaknesses, better serve our students, and support our society with well-trained lawyers who bring diverse perspectives and new ideas.

--John F. O’Brien, Dean and Professor of Law, New England Law | Boston, and chair of the Council of the ABA Section on Legal Education and Admissions to the Bar

The Changing Law School Equation

[Michael A. Olivas]

Because most of us went to law school during the Golden Age, which I situate as having ended about five years ago at the top of the application apex and the height of the modern-day job markets for law graduates, most of us are blissfully unaware of recent developments that literally threaten the enterprise. I write to discuss these many moving parts and to call us to action as a community, for threats to the universe of legal education will affect us all to our collective detriment.

Let me set out the many parts, and then describe their interrelationships. A number of states, faced with ruinous economic conditions, are reducing their subsidy to public institutions. This development and the rising cost of private education have meant that it is harder to finance education without resorting to substantial student debt burdens. Many already arrive at our law schools with substantial obligations and compromised credit worthiness. Some states have privatized their public law schools, rapidly increasing the tuition prices. Private law school tuition costs have continued to outstrip the consumer price index. Both these features have meant that law student debt loads have also increased substantially. These developments have also led to internal reorganization and the creation of revenue streams to law schools,
such as increased CLE and short-term curricular offerings, executive-style programs especially at the graduate level, additional and more-specialized LLM programs (including on-line and asynchronous course offerings), and other revenue-generating and auxiliary enterprises.

In a difficult post-baccalaureate job market, law schools historically have been reasonable and accessible options to medical school, MBA programs, and other graduate or professional alternatives. While there are more law students enrolled at present than in history, the demographics of law study are shifting as well, and not all the populations will be equally able to undertake law study.
 
Students have increased information about their choices, but there are substantial information asymmetries; these can lead to imperfect self-assessments. As with choices of annuities, 401 (k) plans, and prepaid tuition plans, there are so many choices that applicants are in a position to have too much data, and a poor sense of what law school is the best for them.

No Tier: Alternative Models of Legal Education

In talking about these issues, we keep circling back to reducing tuition (and resulting law school debt) as the best way to re-align the costs and benefits of a JD degree. One of the most common proposed solutions as to how to do this involves getting rid of ABA accreditation regulations.  Deregulating legal education would allow law schools to:

• use non-tenure track and adjunct faculty to teach
• have professors teach more and do scholarship less
• virtualize law school

Whenever  reformist ideas get aired, there is concomitant hand wringing about our entrenched professoriate, student loan complex, and the ABA’s slow-moving deliberative processes. Dean Chemerinsky is absolutely correct to express doubt as to whether or not law schools will change.

I want to point out that outside of the mainstream ABA/U.S. News system, lower cost legal education alternatives do exist.  Some schools that have chosen to forego ABA accreditation and have convinced a few states to allow their graduates to practice law.  There’s Kaplan’s Concord Law School, which offers a virtualized JD.  The Nashville School of Law, a survivor of the historical night law school movement, is dedicated to providing a low-cost legal education to working students.  We recently learned of a new opportunity law school opening in Indio, California.  What these schools have in common is that they are cheap. A JD from the Nashville School of Law costs $21,168.  Tuition at the new Indio law school is set at $12,000 a year.  A JD from Concord Law School is more expensive, but at $40,000, it is still cheaper than one-year’s tuition at many ABA accredited schools. These schools follow a teaching model where mostly adjunct instructors teach substantive law and skills but do not get paid to write law review articles.  

There is a caveat in imagining legal education without ABA regulation.  A hands-off deregulatory approach will increase reliance on adjunct or contingent faculty with much lower pay scales and job security. The higher-ranked law schools will likely retain a scholarly focus. In these contexts, traditional doctrinal scholars might remain relatively unscathed.  But faculty who already occupy a precarious position in the U.S. News model – clinical, skills, and legal writing faculty – will likely get the short end of the stick.  Deregulation may also open up the floodgates for ugly large-scale proprietary models, along the lines of the University of Phoenix.

The point here is that the incentive to change might come from the outside.   If states begin responding to demands that lawyers from non-ABA law schools be allowed to practice law, then this could side step the ABA’s longstanding role in defining American legal education.  

-- Lucille A. Jewel, Assoc. Prof., Atlanta's John Marshall Law School 

 

 

Legal Education Must Change, But Will It?

Professor Henderson says that traditional legal education is going to change. Although I agree that it should change, I am more skeptical as to whether it actually will change. All institutions are difficult to alter and this is particularly true of academic institutions. Faculty governance in law schools means that any major change must be approved by the faculty, but faculty members are often a force against major revisions in what they have to teach and do.

Most of all, law schools need to change to better prepare students for the practice of law at the highest levels of the profession. I certainly did not graduate law school ready to practice law. Preparing students to practice law must include having them do so while in law school under the supervision of an attorney. It is impossible to imagine medical students graduating from medical school without having seen patients, but this is exactly what law schools have long done. At UC Irvine we require all students to complete a clinical requirement in order to graduate. In fact, clinical education at UC Irvine begins in the first year as students are required to go to the legal aid or the public defender office and do in-take interviews. There are also several clinics available to students in their second year of law school.

Yet, contrary to Professor Henderson, I wonder whether many law schools will make the transition to emphasizing preparing students to be lawyers. Clinical education--and more generally experiential learning--is much more expensive than traditional classroom instruction. Faculty often will decide that they would rather spend the money to hire other tenure-track faculty members instead of hiring more clinical faculty. For decades there have been reports urging law schools to do more to prepare students for practice. Nonetheless, the conduct of legal education is remarkably the same as to when I began law school in 1975.

I am hopeful that there will be sufficient pressures to cause law schools finally to change. Economic pressures might provide the incentive for law schools to do far more to prepare their students to practice law and thus be more attractive to employers. But economic pressures on law schools might mitigate in the other direction as they need to stress less expensive forms of instruction.

Too often curriculum reform in law schools is about changing the number of units of a first year course or moving something from a required course to an elective. I share Professor Henderson’s view that more radical change is needed. I am more skeptical though as to whether it will happen in law schools across the country.

--Erwin Chemerinsky
Dean and Distinguished Professor of Law
UC Irvine School of Law

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How Should Law Schools Change?

Thanks panelists for your excellent posts so far, and thanks to the commentors. (Check out the comments to Bill Henderson's Oct. 31 post for some interesting debate.)

I'd like to play moderator here for a moment and pose a couple of questions to our panelists and readers. 

1. Bill Henderson suggests that law schools need to retool their curricula. If this is true, what, specifically, should the next generation of law schools look like? 

2. Law graduate debt and employment opportunities seem to be driving the debate over how law schools are performing right now. What role should law schools play in reducing graduate debt loads? How should they improve the job prospects for new graduates?

Feel free to share your thoughts in the comments. Readers, if you would like to submit a guest post on these questions or the larger issue of whether law schools are in crisis, email it to [email protected] and please be sure to tell me who you are. 

-Karen Sloan

Reporter, The National Law Journal