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.

Susskind writes at “1.3 A Journey” (I’m reading the Kindle version, so no page number):

To recap, the four thoughts that contributed to the writing of this book are as follows: (1) lawyers might fade from society as other craftsmen have done over the centuries; (2) lawyers are denying that they are lawyers because they recognize the need to change and diversify in response to shifts in the market; (3) no-one seems to be worrying about the fate of the next generation of lawyers; and (4) the delivery of legal services will be a very different business when financed and managed by non-lawyers.

As insightful and provocative as Campos’s current blog project is, even he (at least so far) doesn’t appear to question the continuance of business as usual in the legal profession; he simply argues that law school does not (and has not for many decades) adequately prepare law students for practice upon graduation. In fact, law school has probably never done that, but for many years, the unspoken understanding (the “Cravath model“) was that law associates would be trained on the job by large law firms–and that the lucky few would eventually make partner, while the rest would presumably move on to other firms, if they were not already burned out by years of tedious practice.

William Henderson and others have certainly noted the end of the Cravath model. Many suspect that the law firm market is currently undergoing not just a cyclical downturn, but a long-term restructuring that will result in leaner firms unwilling or unable to continue their customary training function. Susskind, however, goes beyond that to suggest that much of what has been traditionally seen as lawyers’ exclusive domain will be unbundled and taken over by other professions and semi-professions. Lawyers, after all, are information professionals, not that much unlike librarians, journalists, and other professions currently threatened by changing technologies. It is unlikely that the professional guild and it’s regulations (either in the form of law school accreditation or control over ethical rules and bar admissions) can keep technology and the marketplace at bay forever.

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.)

The readings refer to:

Susan R. Martyn & Lawrence J. Fox, Traversing the Ethical Minefield: Problems, Law, and Professional Responsibility (Aspen, 2d ed. 2008).

Richard L. Abel, Lawyers in the Dock: Learning from Attorney Disciplinary Proceedings (Oxford, 2008).

Carol Tavris & Elliot Aronson, Mistakes Were Made (but not by me): Why We Justify Foolish Beliefs, Bad Decisions, and Hurtful Acts (Harcourt, 2007).

I’m also thinking of blogging some of my course notes and classroom discussions.  It feels a bit risky to expose my thinking in this way on a course I’ve never taught before, but other professors and lawyers might be interested in student reactions, or even in adding their own comments as the course proceeds.

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].

Unlike so many law professors, I’m looking forward to teaching Legal Ethics.  I think this is crucially important material for lawyers, but material that is hard to teach because most faculty and most students don’t take it very seriously.  A few weeks ago I posted a Twitter request for suggestions: “How should I teach legal ethics so it’s not boring?”  Some responses were quite specific: @CarHaulsPickLaw: “show clips of unethical behavior from legal tv shows and have students point out mistakes and say what should have been done”; @BuffaloJennifer: “Do NOT start class with rumours about John Roberts retiring.”  Some offered thoughts on why students don’t like their ethics courses: @jmdipippa: “Challenge is to have students take it seriously beyond the MPRE”; @joshcamson: “Examples. Lots of them. Avoid the cases where the unethical conduct was obvious. Stick to the gray areas.”  Some law professors are struggling with the same question: @efink: “I’ve been pondering the same question”; @annemyers: “I’m curious what results you get from the “how to teach legal ethics so it’s not boring” question.”  A few practicing lawyers recommend the “Scared Straight” approach: @GtroyP: “Start with annual discipline report—do they have those in NY? Pass that around and “tell them this is where careers go to die”; @bojack54: “Start with an overview of accommodations at the closest federal prison.”

The one response that spoke most to me was again from @jmdipippa: ”I think it is that we teach it as law: here are the rules and parse them. Causes cynicism. Maybe more hero stories, personal.”  I don’t think the problem with most ethical failures is that lawyers don’t know the rules, or that they’re unaware of the punishments.  I think that lawyers, like normal people, generally think that what they’re doing is right, and that in most instances it’s their cognitive and ethical blind spots that mislead them into ethical violations.

The approach I’m going to take is inspired by an excellent book on cognitive dissonance theory, Mistakes Were Made (But Not by Me): Why We Justify Foolish Beliefs, Bad Decisions, and Hurtful Acts by Carol Tavris and Elliot Aronson.  Here is my course description:

This course will examine the professional and ethical standards of the legal profession.  We will discuss real life problems using the ABA Model Rules of Professional Conduct as well as New York rules, statutes, and case law which govern lawyer behavior and the lawyer’s duties to the client, third parties, the courts and the public.  The class will analyze the ethical, moral and personal issues which they will confront as lawyers as well as the disciplinary guidelines under which they will be practicing.  This course will focus not just on learning the rules, but understanding and recognizing the circumstances in which lawyers sometimes break the rules.  What types of ethical blind spots lead lawyers down paths toward violating professional and legal obligations?  This will be an interdisciplinary course: we will study not just disciplinary rules, ethics opinions, and case law, but will also consider sociological and cognitive science literature to gain a better understanding of decision-making and the motivations and influences that can lead good lawyers into unethical and illegal actions.

I’m still reviewing casebooks, but my plan is to supplement the casebook I select with a variety of readings from cognitive theory and social psychology, as well as sociological work like Richard Abel’s Lawyers in the Dock. I may even include some material on ethics in legal education. I’m also looking for behavioral economics literature that studies lawyers’ behavior. I don’t know if anyone else is trying an approach to teaching ethics like this, but to me it’s the only one that makes sense.