Almost thirty years ago, the New York Times ran a Sunday magazine feature titled, “The Trouble with America’s Law Schools.” The piece highlighted many of the curricular concerns common today, particularly the lack of practical training, the inattention to issues of professional responsibility, and the disengagement of upper-level law students. Underlying these concerns was a sense of inertia and complacency among the faculty. As one Stanford professor put it, “The present structure is very congenial to us. . . . We’re not indifferent to the fact that our students are bored, but that to one side, law school works pretty well for us.”
Such attitudes remain common, and with reason. For most faculty, the pay, hours, and job security of their positions are enviable. In one survey, 93 percent of legal academics reported being satisfied or very satisfied, the highest percentage of satisfaction among any of the reported legal fields. A fundamental problem in American legal education is a lack of consensus among faculty that there is a fundamental problem, or one that they have a responsibility to address. Law schools have a long and unbecoming history of resistance to reform. That is likely to change only if external pressure from students, accrediting authorities, donors, and courts demands it.
From the perspective of many faculty and students, the financial difficulties of law graduates call for redistributive solutions. Examples include expanding loan forgiveness, increasing public subsidies, and liberalizing bankruptcy rules to allow discharge of student debts. But the obstacles to those responses are substantial. Lawyers are not a group much beloved by American taxpayers, and their elected representatives are likely to resist having government take on additional burdens to aid the profession. In any event, given the current oversupply of lawyers and excessive hikes in law school tuitions, it may make more sense to curtail than to enhance the availability of easy credit.
Less controversial reforms, such as increasing disclosure about job placement and salaries, are already under way. However, more needs to be done. David Stern, executive director of Equal Justice Works, proposes that every school offer students individualized financial counseling as well as a webpage with a breakdown of costs to attend, job placement, salary information, and loan burdens. As he notes, students now encounter unnecessary difficulties in cobbling together this information and applying it to a complex federal student loan system.
Schools also need to look for more ways to cut costs and to diversify their revenue streams. More programs for nonlawyers, undergraduates, practicing attorneys, and foreign graduate students are obvious options. Debt burdens for students could also be reduced by allowing them to attend after three years of college, as a few law schools now do.
A further way of reducing the cost of at least some law schools would be for state supreme courts to eliminate the requirement that only graduates from ABA-accredited law schools may sit for the bar exam. In a Montana Supreme Court decision denying the request of a graduate of an unaccredited California law school to take the bar exam, two dissenting justices pointed out that “[n]o empirical data has been offered to suggest that the ABA standards correlate in any way to a quality legal education. What is evident is that the monopoly given to this private trade association to set standards for law schools increases the cost of legal education, [and] burdens new members with debt that limits their options for professional and public service. . . .” As Brian Tamanaha argues, if a substantial number of states eliminated the requirement of an ABA-accredited legal education, the result would likely be to force greater price competition between lower-ranked schools and unaccredited institutions that are now one-third the cost. Although graduates of unaccredited schools have much lower bar exam pass rates than graduates of accredited schools, it is hard to know how much of the difference is due to the caliber of the students and how much to the quality of educational preparation. In any event, a significant percentage of graduates of institutions that lack ABA accreditation do ultimately pass the bar, and this method of qualification is one way of making legal education affordable for those of limited means.
Reducing the price of legal education more generally would become far easier if the influence of the U.S. News and World Report ranking system were challenged and if accreditation requirements were significantly curtailed. Law schools could work together with bar organizations to create an evaluation structure that did not use expenditures and vague reputational surveys as a proxy for quality. Instead of imposing the same requirements on all schools, accreditation authorities could take account of different institutional missions and priorities. As an ABA Task Force on the Future of Legal Education noted,
The system of legal education would be better with more room for different models. Variety and a culture encouraging variety could facilitate innovation in programs and services; increase educational choices for students; lessen status competition; and aid the adaptation of schools to changing market and other external conditions.
Just as higher education offers a range of choices, from community colleges to elite Ivy League institutions, legal education should provide greater diversity. To that end, accrediting authorities could eliminate uniform standards for matters such as facilities, adjunct teaching, distance learning, and faculty research support. Institutions could vary in the specialties they offered, in their reliance on lower-cost adjuncts and online courses, and in the relative importance they attached to practical skills and legal scholarship. Giving students more options might reduce the regressive aspects of the current structure, which imposes crushing debts to subsidize the research and light teaching loads of relatively well-off faculty.
Schools could also offer a variety of degree options based on one-, two-, and three-year degree programs. States could license graduates of one-year programs to offer routine legal services. The ABA Task Force took a step in that direction by recommending that state authorities develop licensing systems for limited law-related services, and that accrediting authorities develop standards for programs preparing limited-service providers. States could also license lawyers after two years to practice in a particular specialty, such as tax, family, or criminal law. In effect, the bar could move closer to other professions, such as medicine, which certify practitioners based on their extent of training.
Proposals for more diversity in legal education are nothing new. A prominent 1921 report for the Carnegie Foundation by Alfred Reed recommended adoption of a two-tiered system. Full-time programs would train highly qualified lawyers to serve corporate and governmental clients; part-time programs and night schools would prepare general practitioners to meet routine legal needs. By institutionalizing this division, the profession could accommodate concerns of both accessibility and quality. Again in 1972, the Carnegie Foundation produced another report, modeled on Paul Carrington’s recommendations to the Association of American Law Schools. It proposed a two-year standard curriculum available to students after three years of college. It would provide graduates with a grounding in core subjects and opportunities for intensive instruction in professional skills. An advanced curriculum would be available to students who wanted a third year, and that year could also be completed in noncontinuous units after leaving law school. The ABA flatly rejected both the Reed and Carrington proposals. The only way that accredited schools can now offer a two-year program is to compress three years of credit-hours into two. Schools that do so charge the same tuition as three-year institutions, which significantly reduces the cost savings that a shorter program is designed to offer.
Proposals for a two-year degree have recently resurfaced, most prominently by President Obama. In a town hall meeting discussing how to make education more affordable, Obama said that “law schools would probably be wise to think about being two years instead of three. . . . The third year [students] would be better off clerking or practicing in a firm even if they weren’t getting paid that much, but that step alone would reduce the costs for the student.” While acknowledging that eliminating a third year could hurt a school’s finances, the President added, “Now the question is can law schools maintain quality and keep good professors and sustain themselves without that third year? My suspicion is, that if they thought creatively about it, they probably could.” That proposal resonated with a growing number of commentators who have recommended letting students sit for the bar after two years of school, or replacing the third year with apprenticeships or externships at a nonprofit organization or governmental agency.
Such proposals set off a firestorm of protest. Georgetown law professor Philip Schrag worried that “new lawyers would be exposed only to basic survey courses and would receive little of the specialized training that their future clients will need.” U.C. Irvine Dean Erwin Chemerinsky predicted, “If law school were two years, the first things to be cut would be clinical education and interdisciplinary courses, which are the best innovations since I went to law school in the mid-1970s.” Yale law professor Bruce Ackerman similarly claimed that shortening the degree requirements would
impoverish American public life. Once two-year graduates move into practice, they won’t be able to deal adequately with bread-and-butter issues of antitrust, intellectual property, or corporate law, let alone with the challenges of civil rights or environmental law. It is frivolous to suppose that these lawyers would pick up the key skills on the job. Social science and statistics require systematic training, not a crash course in response to particular problems. . . . A two-year curriculum promises to lobotomize the profession by 2050.
As columnist Paul Lippe responded,
I actually agree with the things Professor Ackerman says law schools should emphasize, but I saw nothing in his essay that suggested that they couldn’t be addressed in a two-year curriculum, or that debt-strapped law students should continue to cross-subsidize his scholarship to a level that compromises their long-term financial solvency, or that the Yale model should be mandatory for all schools, which would be a pretty command-and-control way of looking at what could be a market choice.
The fundamental issue is not whether there are benefits from a third year of training. It is whether the benefits are so critical that all students should be required to bear the costs. According to two-thirds of recent graduates, the traditional three-year law school education can be condensed into two years without negatively affecting the practice-readiness of new attorneys. If bar exams were correspondingly condensed to test fewer doctrinal subjects, the task of paring down the law school experience would be easier. Even as things stand, one- or two-year programs could well be sufficient to train graduates in areas where unmet legal needs are now greatest. In other nations, many of those needs are effectively met by specialists with less legal training than lawyers.
Moreover, as federal judge and law professor Richard Posner argues, opening the legal academy to greater innovation and competition among different models is likely to produce a better educational experience. Law schools would face greater pressure to demonstrate, not simply assert, the cost-effectiveness of their particular approach. If employers perceive a difference in quality among the graduates of two- and three-year programs, or in the schools that produce them, students will respond accordingly.
Fundamental changes in the structure of law schools could prompt similarly fundamental changes in their curricula. Rather than taking the existing core courses for granted, educators should consider what competencies are necessary for legal practice and then adjust requirements accordingly. Such an approach would argue for greater focus on practical skills. At a minimum, as the Clinical Legal Education Association has recommended, all students should be required to complete at least one clinical course or externship before they graduate. If schools decline to impose such requirements, state supreme courts could do it for them.
Models for more practice-oriented initiatives are readily available. Northwestern Law School undertook its own analysis of “foundational core competencies” that legal employers desired, and developed a two-year program that stresses skills in project management, teamwork, communication, leadership, and quantitative analysis. New Hampshire has begun granting licenses to students who are certified “client ready” after taking a two-year practice-oriented program at the state’s only law school. Participants take courses in negotiation, counseling, and trial and pretrial advocacy, along with a clinic or externship and electives in areas such as evidence, tax, and business associations. Other schools have implemented changes in the third year that seek to reverse the decline in preparation and attendance that occurs during that year. Reforms include subject matter concentrations, experiential curricula, and capstone courses that aim to bridge the transition into practice. More schools are sharing courses through local partnerships or online collaborations, and more are integrating interdisciplinary materials. Yet despite the enormous effort that has gone into designing these initiatives, systematic evaluations of their effectiveness are unavailable. Such assessment should be a priority for any institution committed to curricular innovation.
There is, however, a considerable body of research on teaching ethical analysis that can guide reform. It points up the value of experiential, interactive, and problem-oriented approaches. Clinics are an especially effective way of teaching legal ethics; engagement tends to be greatest when students are dealing with real people facing real problems. Ethical judgment in such settings demands more than knowledge of relevant rules and principles; it also demands a capacity to understand how those rules apply and which principles are most important in concrete settings. When clinics involve clients from disadvantaged backgrounds, students can gain cross-cultural competence and an understanding of what passes for justice among the havenots. Although clinical courses necessarily address ethical issues that arise during the semester, not all clinicians have the time, interest, or expertise to provide comprehensive coverage of professional responsibility. Building in additional hours or linking a separate course to clinics may be necessary to ensure such coverage. Regardless of the approach chosen for the core professional responsibility course, it should not be the only site for sustained ethical analysis. Students are much more likely to take professional obligations seriously if the entire faculty does so as well. Every law school should provide incentives and accountability for the integration of ethical issues across the curriculum.
Schools should assume similar responsibility for supporting access to justice and pro bono service. Attention to these issues should be part of the core curriculum. Well-supported extracurricular programs concerning pro bono service can offer a wide range of practical skills as well as exposure to the urgency of unmet legal needs. For these reasons, the Association of American Law Schools Commission appropriately recommended that schools make available for every law student at least one well-supervised pro bono opportunity and either require student participation or find ways of encouraging the great majority of students to volunteer. Schools should also do more to provide adequate support for student placements and to encourage and showcase public service by faculty. As research on altruism makes clear, individuals learn more by example than by exhortation. If law schools want to inspire a commitment to pro bono work among future practitioners, then professors need to lead the way, and legal academia needs to reward them for doing so. And if schools fail to take the initiative, courts can assume that role. New York has set an example by requiring applicants to the bar to complete 50 hours of service as a condition of admission, and California is poised to follow suit.
Schools also need to do more to create cultures in which inclusiveness is valued in practice as well as principle. Every law school should have a formal structure that assigns responsibility for diversity issues. That responsibility should include gathering information about the experience of students and faculty and the diversity-related policies that affect them. Workshops or teaching initiatives that assist faculty in creating more inclusive classroom climates should be priorities.
All of these curricular reform efforts need to include incentives for change. They should reward faculty who integrate ethical issues, supply sufficient student feedback, and use teaching methods that have been shown to be most effective. Annual reports, peer assessments, and student evaluations could be used to hold faculty accountable for the quality of the educational experience, which too often now is valued more in theory than in practice.
Law schools would also benefit from strategies designed to help students cope with the stress and competition of legal education and legal practice. Efforts along these lines are beginning at a number of institutions. More innovation and evaluation is needed. Given that a third of lawyers suffer from mental health or substance abuse problems, legal educators can ill afford to ignore the dysfunctions that begin in law school.
An obvious response to frustrations with student-run journals is to encourage more peer-reviewed substitutes. That, however, seems unlikely, given the economic challenges of academic publishing and schools’ interest in subsidizing journals of pedagogic value to their students. Assuming the current model remains dominant, a recent empirical study of law professors, student editors, attorneys, and judges identified ways to improve the editorial process. One is for student editors to rely on blind reviews and to consult with faculty in selecting articles to publish. Another is more training for student editors concerning selection and editing. Such training could help reduce the excessive length and references that have made articles so off-putting to nonacademic audiences.
Excerpted from "The Trouble With Lawyers" by Deborah L. Rhode. Published by Oxford University Press. Copyright 2015 by Deborah L. Rhode. Reprinted with permission of the publisher. All rights reserved.