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Beyond Transparency: The Crisis of Confidence in Legal Education

Law schools have long kept a comfortable distance from the concerns of the practicing bar. Earlier calls for reform such as the MacCrate Report (1992), the Carnegie Foundation’s Educating Lawyers: Preparation for the Practice of Law (2007), and Stuckey et al, Best Practices for Legal Education (2007), have led to a greater emphasis on more practical training, at least in law school admissions brochures if not always in the curriculum. Increasing competition for rankings has also changed the dynamics of reputation with respect to academic study and practical training at some law schools. Fundamentally, however, most schools have seen little change in the curriculum and overall approach to delivery of instruction since the last century. Despite this, students have continued to flock to law schools, and more law schools have sought and received accreditation. Recently, however, a series of high-profile news reports, blogs, lawsuits by recent graduates, ABA disciplinary actions against law schools, and calls from Congress for stricter regulation have brought increased public attention to fundamental questions about the delivery of legal education in the U.S. What was once dismissed as the unfounded complaints of a minority of embittered law students is approaching a full-blown scandal. Issues such as the ABA’s capture by the law schools it is meant to accredit and regulate, the skyrocketing cost of a legal education in the face of what some argue is a long-term restructuring in the legal market and a permanent downturn in employment, and law schools’ failure to disclose meaningful and accurate information regarding employment prospects, are converging into a widespread sense of disillusionment and dissatisfaction with legal education.

While the perspectives and methods of the panelists vary, each has been a voice for reform within legal education. Some call for a strengthened regulatory hand; others call for deregulation of the legal profession or for voluntary collective action by law schools. All share a concern for the improvement of legal education and the profession. This panel will be an opportunity for a candid and highly interactive assessment of the situation and directions forward.

Confirmed list of panel members:

Professor Paul F. Campos (University of Colorado Law School) –
Professor Kim Diana Connolly (University at Buffalo Law School) –
Professor Jeffery L. Harrison (University of Florida Levin College of Law) –
Professor William D. Henderson (Indiana University, Maurer School of Law) –
Associate Professor Lucille Jewel (Atlanta’s John Marshall Law School) –
Professor Larry E. Ribstein (University of Illinois College of Law) –
Professor Brian Tamanaha (Washington University School of Law) –

Unfortunately, this program will not be presented at AALS in DC this year. I worked with the panelists listed above (including the late Larry Ribstein, whose passing a couple of weeks ago was mourned by dozens of law bloggers and hundreds of law professors) and submitted it as a Hot Topic proposal in November. In December the proposal was rejected; the reason given was that the topic was sufficiently addressed in the workshop on legal education starting in a few minutes.

Eye of the beholder, and all that:

When the Association of American Law Schools gathers in Washington today for a three-day conference, many big and timely issues will be up for discussion. Presentations will address the financial crisis, the mortgage crisis, the legal fallout of the BP oil spill and, perhaps inevitably, Occupy Wall Street.

But relatively few sessions address a crisis making headlines that falls much closer to home for faculty and administrators from the association’s more than 160 member schools: the increasingly prominent questions about transparency, job placement rates and “value” in American legal education, and the attendant concern that law schools could be next (after the “vocational” and for-profit programs subject to the U.S. government’s new “gainful employment” rules) in line for federal scrutiny and regulation.

The event’s organizers say that those issues will doubtless be discussed at the conference, although the nature of planning such gatherings — many sessions are proposed almost a year in advance — makes it more difficult to highlight up-to-the-minute issues. And a workshop today will address “the future of the legal profession and legal education,” including sessions on innovations in teaching and challenges and changes to law school economics….

Although the association does add sessions on “hot topics,” including sessions this year on Libya and the Occupy Wall Street protests, those are determined by which proposals are submitted, and there was not a strong proposal for a session on the legal education crisis, [AALS Executive Director] Prager said.

I thought we submitted a pretty strong proposal myself.

Paul Campos (LawProf at Inside the Law School Scam) reprints the following letter from a law school applicant having second thoughts:

I think that the reason why 0Ls continue to perceive law school as an attractive option regardless of the costs or employment realities, is that by the time they get information regarding the employment picture, most have already invested a great deal of physical and emotional energy into law school. They’ve probably spent months studying for and then taken the LSAT, invested time in researching law schools and taken the employment materials they’ve provided at face value, found professors to write them letters of recommendation, drafted and revised their personal statements numerous times, and finally sent out their applications only to wait with great anxiety about whether or not they would be accepted. If they’re anything like me, during this whole process, they’ve also looked back at their college education and all the effort they put into performing well as meaningfully leading up to the moment where they could enter professional school and embark on a rewarding and lucrative career path. This, paired with the fact that they are constantly being encouraged by classmates, professors, pre-law advisers, and family members (and more or less all of society) to continue their education and pursue a professional degree, deters them from considering that a legal education might be the biggest mistake of their lives. It was only after I had finished sending out all of my applications in mid-December that I began to casually look more closely at the perils of pursuing a law degree (and by this time I had already been imagining the “perceived” rewards of pursuing a legal career for nearly 12 months).

Transparency with respect to law school costs and employment prospects will certainly help some students make informed choices, but it is not a panacea. Given the phenomenon of cognitive dissonance and the resulting tendency of individuals to refuse to admit to themselves when they’ve made a bad decision, it may be that criticisms of legal education are in fact undervoiced, rather than the reverse. It is perhaps surprising that more law students have not climbed aboard the “law school scam” bandwagon.

Christopher came into my and my ex-wife’s life from our favorite taco restaurant in 1991 or 1992. Eberly and I were eating at the now-gone Happy Taco in St. Louis, when one of the owners came up to us. “You seem like such nice people. Would you like to adopt a cat?” He was a tiny flea-ridden kitten with frizzy orange fur, found by the owners in the alley, but he was very cute, and of course we took him home.

For the first week or two Eberly brushed and combed him constantly, until finally he was rid of fleas. Our other cat, William, took to him right away. William had a bad habit of chasing and attacking Eberly’s bare feet as she walked around the apartment; clearly he needed a playmate. William and Christopher became fast friends, and they would often be found curled up together.

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Yesterday I posted on Facebook a simple question:

What law schools have undertaken serious consideration of the permanent restructuring of the legal market in their mission & strategic plan?

Reasonable people may differ on whether the current recession and the last few years of poor hiring by law firms necessarily mean we are undergoing a permanent, fundamental change rather than a simple economic cycle. The evidence is mounting, however, that reasonable people cannot take the latter conclusion as a given. If numerous scholars and practitioners who have examined the trends closely have concluded that the legal market is undergoing basic, long-term change, it is foolish to ignore their conclusions and act as if everything is going to go back shortly to the fat times and eternally growing legal market we all know and love.

The New York Times chart showing the state-by-state surplus of lawyers in the U.S. is only the latest indication that the market for lawyers is changing. Brian Tamanaha notes some of the likely effects on law schools:

The 2010 acceptance numbers suggest that many law schools are already in a worrisome spot. That year, twenty schools accepted between 45% and 49% of the students who applied; twenty-two schools accepted between 50% and 59% of applicants; and seven schools has an acceptance rate of 60% or higher (Cooley was the highest at 83.3%). Added together, nearly a quarter of law schools in the country accepted close to half or more of their applicants—and this was before the latest decline in the number of applicants.

Law schools have enjoyed flush times for more than a decade. Tough times are ahead.

Stephen Bainbridge adds:

The point should be obvious. Unless law schools voluntarily start consolidating and downsizing, which seems about as likely as yours truly winning the Miss America pageant, we face a long-term prospect of ever increasing competition for fewer and fewer applicants. Long before the day comes that there are fewer applicants than available seats, we will be in very big trouble. Budgets will have to be slashed to pay financial aid to attract students. Admission standards will have to go down. Relations between deans, faculty, and students will be increasingly fraught.

What we have here is a classic collective action problem. Unfortunately, what we don’t have is a market in which to develop solutions to that problem.

For many traditional critics of legal education, the response is simple: law schools should quit teaching all that theory and focus on practical skills so new graduates can hit the ground running (as minimally skilled servants to entrenched capital interests). Larry Ribstein suggests that such solutions are shortsighted:

The problem isn’t that we have too many law trained people and so should train fewer.  In fact, in our increasingly regulated economy, there is probably a gross undersupply of law-trained people.

The problem is that regulation has fixed the nature of the product so it hasn’t adequately responded to shifts in demand.  The downward demand shifts have been produced by, most importantly, technology.  But demand is increasing for new kinds of law-trained people both at the low-cost end of service to the poor and middle class and the potentially high-profit end of producing new kinds of products and services (see Law’s Information Revolution).  Yet regulation has locked law schools into models that don’t serve these new needs.

The best short analysis I’ve read was just published in the ABA Journal, “Law Job Stagnation May Have Started Before the Recession—And It May Be a Sign of Lasting Change,” which concludes:

Whether the changes affecting the legal profession are indeed a reflection of market cycles or a complete paradigm shift will become evident in coming years. But for those betting substantive change has not happened, they are betting their practices against the future.

The answers thus far on my Facebook post suggest that there aren’t many law schools taking this seriously. One colleague comments “I think that depends on what ‘permanent restructuring of the legal market’ means–is there enough agreement on that to have taken it into consideration?”

How much agreement do we need to begin taking the future seriously?