Once there was a violist playing in the Winnipeg Symphony. He wasn’t that wonderful a player, so he sat at the back of the section. One day he was cleaning out his attic and discovered an old lamp. He gave it a rub and out popped a genie.

“For letting me out of my lamp I’ll grant you three wishes!” he said.

The violist thought for a moment and replied, “Make me a far better musician than I am now.”

The genie told him that this would be done. He was to go to sleep, and in the morning he would be a much better musician. The next day he woke up to find himself the principal violist of the Symphony. Well, this was just great, he thought! But he knew he could do better. He rubbed the lamp again, and out popped the genie.

“You have two more wishes!” he said.

“I want you to make me a better musician than I am even now!”

Once again, the genie told him to go to bed, and when he woke up it would be so. When the violist awoke, he found he was now the principal violist of the Berlin Philharmonic. Well, the violist thought this was pretty grand, but knew he could do better yet. He rubbed on the lamp again, and once more out came the genie.

“This is your last wish.” the genie said.

“I want you to make me yet a better musician still!”

Yet again, he was told to go to sleep. The next morning, he woke up to find himself back in Winnipeg, sitting in the last desk of the second violin section.

I am grateful to Renee for the opportunity to contribute to this discussion with such a distinguished group of law professors, and to work through some of the nagging concerns I have been feeling as I prepare for spring classes.

To me, it is undeniable that legal education is in a crisis; the only real dispute is over its scope and how to respond. This crisis is a complex one with multiple dimensions. One of the elements of this crisis is that the various stakeholders–among them law students, big law firms, law professors, law school deans, and client/consumers–have approached it from multiple directions, asking very different questions, and proposing very different, mutually contradictory, solutions.

It is routine to illustrate complex problems with the parable of the blind men and the elephant, but the typical function of this parable is to demonstrate that each party has a partial view, and that by working together a more complete view would be possible. I picture the current crisis in legal education a little differently, with a greater sense of urgency, and lament the effort wasted in arguments that miss crucial points. Imagine several blind physicians called in to examine one, very sick elephant. One physician examines the ear of the elephant and pronounces “This animal has an infected ear. It must be treated immediately! Medication and rest are essential.” Another physician feels the side and proclaims “This animal is overweight. It must immediately begin exercising more.” A third palpates the leg and declares “This animal has muscular atrophy. It needs slow and careful physical therapy.” Then the three physicians proceed to ignore the elephant and argue among themselves over which medical condition is worst and which treatment must be given priority.

Similarly, current critiques of legal education tend to identify at least three areas of dysfunction. They are not completely separable problems, but they have much less in common than is usually presumed. Discussions that confuse these problems are likely to be unproductive and generate pointless arguments.

(1) Lawyers in large law firms complain that law school fails to prepare students to practice law. Many law students fear that the lawyers are right. One response is to call for various reforms such as increased clinical and practical skills training. Defenders of legal education argue that critics are repeating old criticisms and are unaware of how law school has changed. They point out that law schools have been offering such skills training for years, and that expanding this kind of education is likely to be even more expensive, requiring smaller classes and more faculty with expertise that can only be gained through long years of practice. Others note that, for generations, law firms preferred to do their own training; elite schools served largely to select elitelaw students for large law firm employers. Now that large firm clients are less willing to pay inflated fees for first-year associates to do document review and bring in money for the partners, law firms are less willing to invest in the training that they have traditionally done.

(2) Law students and recent graduates complain that law school tuition debt is out of control, and fear that they will never get law jobs that will enable them to pay off their debt, especially in view of what many believe is a long-term restructuring of the legal profession. Bill Henderson and RachelZahorsky, among others, argue that current law school tuition levels are unsustainable, and predict an eventual law school crash.

(3) A third well-known problem, but one that is less often tied to the current legal education crisis, is the widespread dissatisfaction among lawyers and the prevalence of depression, substance abuse, and other problems.

Law professors and deans have been slow to face up to their ethical responsibilities in the face of these problems.

(1) My sense is that both defenders and critics of the current methods of legal education make valid points, but that the various stakeholders are also, and inevitably, biased by their own interests. Big law firms complain that law schools don’t teach enough of the skills that their corporate clients demand. Clinical faculty argue for more clinical opportunities for students and higher status for clinicians. Writing and research faculty argue that the most crucial skill is the legal analysis that they uniquely teach. Faculty scholars argue for a broader conception of “practice-ready” skills that includes a theoretical grounding that prepares students for a lengthy career.

What makes finding solutions difficult is that all of these arguments are correct. Few law schools have undertaken the hard, self-critical work to address what is sometimes known in the law library profession as “The Carl Yirka question”: “What should law libraries [or law schools] stop doing in order toaddress higher priority initiatives?” Few law schools can even answer coherently the most basic question: “Why are we here?” One does not have to be an anti-intellectual to question whether law schools properly balance the demands of scholarship and teaching. Even adopting a more “consumer-oriented” attitude toward legal education begs the question (and I am using that phrase correctly here): who is the consumer of legal education–is it the student, who almost inevitably graduates without the skills necessary to open a solo or small firm practice, or the large law firms, who consume the lawyer-shaped widgets we produce, and complain if they do not meet specifications? I am unwilling to adopt  a solution that grants too  much to the instrumental demands of big law, and treats law students less as autonomous individuals and more as products.

(2) As Cassandra Robertson (here) and others in this forum have noted, It is likely that law schools will experience contraction. Some will close; many will experience shrinking admissions. So far, however, we law professors have been largely unscathed. Perhaps our travel funds have been somewhat reduced; perhaps we don’t have quite the freedom we’re accustomed to with regard to our favorite boutique seminars. At the same time, some law schools are considering reducing tenured faculty teaching loads from 12 to 9 credit hours per year, while students ask where their tuition is going. And if law schools will shrink, we should question whether it is responsible to continue hiring tenure-track faculty as though all is business as usual. Law schools are making lifetime commitments to increasing faculty numbers when the future is too uncertain to predict.

I have heard little discussion of the likely impact of law school restructuring on our students. Calls for reform from within the law schools rarely have reducing costs among their primary goals. At the same time, it seems clear that improvements in teaching methods and curricula will ultimately be of little value if our new and improved law graduates are still unable to find jobs.

(3) Finally, Paul Horwitz has written a series of excellent blog posts on Teaching Legal Ethics in a Legal Recession (and here and here). Many of us who teach professional responsibility attempt to prepare students for the inevitable stresses of practice. Are we doing them a disservice? Could we–should we–do more to not only inform students of the risks, but help them develop life skills to become happy, healthy, and successful lawyers?

For law schools whose tuition remains relatively low, a focus on small firms and solo practice may be increasingly viable. It is sometimes glibly suggested that law graduates unable to find big firm jobs could simply hang up a shingle, but doing so without the necessary skills is a recipe for disaster. Some schools could choose to offer a specialized set of third-year courses designed to give students the skills they would need to open a solo practice. Such courses would be similar to the new third-year curriculum at Washington & Lee, but would include law office management and ethics with a focus on the sorts of issues that tend to plague solo and small firm lawyers like financing, misappropriation of client funds, neglect of client matters, and stress management. No single solution will work for every student or every law school. For those law schools below the top 25 or so, individualized responses will be needed; not every law school will survive.

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.

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.

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.

After the sweet and wonderful William passed away about seven years ago, I adopted two new kittens to keep Christopher company. Trjegul was a grey, striped fluffball, and Bygul a sleek little black kitty.

As Trjegul got older, she became Christopher’s girlfriend–a love that could never be, as both had been neutered as kittens. Still, Trjegul and Christopher loved to curl up together, and Christopher would occasionally make a pass at her, although neither really knew what to do.

Christopher was definitely the boss cat in our household. When there were adventures to be had (rare for indoor cats), he was in the lead.

Although Christopher was in charge of the cats, a responsibility he took seriously, he was not above having fun.

Mostly, though, Christopher loved me. He loved to sit in my lap or curl in my arms. At night he would settle down between my legs as I slept, and he was the one responsible for waking us up in the morning to make sure all the cats got their breakfast.

Christopher loved Kristina, of course–how could he not?–but with all he and I had gone through together, we were special buddies.

A few months ago, we took Christopher to the vet because he seemed to have trouble eating and his breath was bad. The vet extracted the bad teeth, and he was able to eat better, but the wound didn’t heal properly. After a biopsy showed he had mouth cancer, we decided to take care of him as long as he was able to eat and as long as he seemed to be in little pain. He was always a sweet, sociable kitty, and he loved to sit in my lap on the couch as we watched TV in the evening. We put him on a special diet that was easy to swallow, and he kept going. He slowed down, and didn’t play much, but he still loved to cuddle with us.

Yesterday Christopher wasn’t able to eat. He tried licking at the liquidy food the vet prescribed, and that he had been eating well for a couple of months, but it was obvious that he was in pain. We knew he was ready to go.

We took Christopher to the vet this morning, and he passed away peacefully in our arms. He was always a brave little kitty, and my best buddy. Kristina and I, and the other cats, will miss him very much.

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?

TaxProf Blog: ABA Reforms Law School Placement Data Reporting,

http://taxprof.typepad.com/taxprof_blog/2011/06/aba-reforms-.html

The pictures were exactly what you’d expect from a European summer vacation: Cafes in Italy and Spain, the Guinness brewery in Ireland. So 24-year-old Ashley Payne, a public high school English teacher in Georgia, was not prepared for what happened when her principal asked to see her in August 2009.

“He just asked me, ‘Do you have a Facebook page?’” Payne said. “And you know, I’m confused as to why I am being asked this, but I said, ‘Yes.’ And he said, ‘Do you have any pictures of yourself up there with alcohol?’”

In fact, the picture that concerned the principal – showing Payne holding a glass of wine and a mug of beer - was on her Facebook page. There was also a reference to a local trivia contest with a profanity in its title.

Payne was told a parent of one of her students called to complain. And then, Payne says, she was given a choice: resign or be suspended.

“He told me that I needed to make a decision before I left, or he was going to go ahead and suspend me,” she said.

She resigned. Attorney Richard Storrs is fighting to get Payne’s job back.

“It would be like I went to a restaurant and I saw my daughter’s teacher sitting there with her husband having a glass of some kind of liquid,” Storr said. “You know, is that frowned upon by the school board? Is that illegal? Is that improper? Of course not. It’s the same situation in this case.”

But here’s the really troubling part: Payne had used the privacy settings on Facebook. She thought that only her closest friends could see her vacation photos or her use of the “B” word.

“I wouldn’t use it in a classroom, no,” she said. “But Facebook is not the classroom. And it’s not open to the students of my classroom. They are not supposed to see it. I have privacy in place so they don’t see it.”

Privacy?

What Ashley Payne or anyone of us who uses the Internet has to realize is this: Today our private lives are no longer so private.

In fact, the Facebook issue is, to me, largely irrelevant. Storrs is correct: it is exactly like witnessing a 24-year-old adult drinking a glass of beer or wine in a restaurant. The link to Facebook and privacy issues accomplishes three purposes: (1) fitting into the dominant framework that the openness of communication on the Internet is something to be feared, (2) directing attention away from the gender-based and economic issues that made it so easy for the school board to fire an adult for drinking a glass of beer on her own time, and (3) infantilizing all of us by prohibiting adults from engaging in behavior seen as inappropriate for children.

It is hard to imagine that a 24-year-old male teacher in Georgia would have been fired for the “offense” of drinking a beer in Dublin. A male high school teachers would be less likely to be viewed as a role model for high school teens (that’s what high school football is for). As an adult woman, Ms. Paine must be forced into a patriarchal model of young femininity.

The problem with the privacy framing is this: there is no reason that Ms. Paine’s consumption of Ireland’s favorite beverage should be considered private or shameful. It is only because the principal and school board chose to use it as a reason to fire her that privacy became an issue. Of course, employers in Georgia are free to fire employees for no cause; such is the freedom our system provides us. Ms. Paine, of course, is equally free to choose between employment and behaving like an adult.

I may be wrong about the gender issue; perhaps a male teacher would have been fired for the same cause. If so, that only strengthens the case for my third claim. Just as some calls for censorship of adult materials would restrict access by everyone to reading books and viewing films that would not cause discomfort to parents of minor children, so the privacy framing of an adult’s firing for drinking a beer posits that adult’s activity as shameful, as something to be hidden. Privacy framing in this way serves to diminish the scope of the public sphere by expanding the sphere of the shameful.

(Cross-posted from ClassCrits.)

Publishers could make their publications more attractive to libraries through innovations that address budget concerns; loose-leafs would seem to be a prime candidate for such innovations. That does not mean the loose-leaf format as we know it is dead. Although it is probable that the number of publications in loose-leaf format will decrease over the next few years, there will always be situations where the format serves a useful purpose [emphasis added].