Law Schools Are Changing, But How and Why? (Part 2)

law schools are changing 2

How, exactly, are law schools changing? How will they change in the next 5 years or so? It’s tempting to conclude, given the legal job market and the intense criticism the schools have endured, that they must be changing a lot, and quickly.

I disagree. As long as federal student loan money continues to flow like a river, nothing significant will change. Money drives everything in the law: legislation, the executive branch, judicial elections, law firms big and small. Only money (or the lack of it) will change the law schools.

Privatization

Last week I wrote about a lawsuit filed by two “tenured” professors who were fired by the for-profit Phoenix Law School. While I have no sympathy for either law professors or law schools, it is interesting to speculate on whether for-profit law schools will lead traditional schools to develop programs that aim to prepare students to pass the bar exam and practice law, rather than sticking with programs that aim to create scholars capable of researching and writing a law review article. My conclusion: maybe, but I doubt it.

The federal government’s refusal to face up to what may well be a student loan bubble is providing schools (both non-profit and for-profit, across the spectrum from tech schools to grad schools) with no real incentive to change. And law schools are the worst offenders in this respect.

Elite? No problem

Kyle McEntee, co-founder of Law School Transparency, wrote a column for the ABA Journal’s “New Normal” page a few weeks ago. His goal was to lay out what is driving change in legal education. While I have been a fan of LST for years (I gave them a bit of money, and I urge you to also), I have to quibble with some of his predictions for the future of law schools.

His first point is spot-on: the super-elite law schools aren’t going to change at all, because they don’t have to. Biglaw and academia will continue to hoover up their graduates, while most of the rest will do interesting things like becoming the Dopest Lawyer in LA or President of the United States.

Follow the money

But I disagree with Kyle when he asserts that since accurate information is now available on employment prospects at non-elite law schools, those schools are being forced to improve outcomes. Kyle writes that non-elite schools will move toward this kind of model:

The faculty will be hired for their experience as lawyers, judges, regulators and policy wonks. Scholarship may not be part of the job description, but will endure because the desire to analyze the world around you is human nature. The schools may teach undergraduates, paralegals, and other professionals in addition to lawyers. Ultimately, local leaders and lawyers will shape an education that is less graduate studies and more professional development.

Well, again, maybe . . . but not until the money train stops running. Law school faculty pushed tuition up at several times the rate of inflation for decades, while raising faculty salaries and reducing teaching loads. How did they do that? Kyle is partly right that they did it by misrepresenting their graduate’s employment numbers. But mostly they did it because there was no reason not to: federally guaranteed law school loans were a vault that the schools could plunder with impunity.

As for the effect that had on students? Meh. But now that everyone knows the market is terrible, which has pushed the number of law applicants down significantly, the schools must change, right? Once more, with feeling, maybe . . . but in my opinion, no where near the kind of change Kyle is talking about.

Deans running scared

Imagine you’re a law school dean at a traditional non-profit third-tier school. Your graduates aren’t getting jobs. The “quality” of your applicants has dropped. You know your school should change. But your bosses are the law school faculty. How do you think they’d react if you stood up and said, “Sorry folks, but the party is over. We just can’t afford to keep all of you very expensive scholars who can’t teach our students real lawyering skills. We need to get rid of 50% of you in the next two years and replace you with practicing lawyers, ex-judges, regulators and policy wonks who will work for half as much money and have real skills to pass on.”

Crickets. Or perhaps, the sound of swords being drawn.

Brooklyn Law School, an independent school (presumably free of university or church interference) tried a two-headed approach to governance recently, with one dean handling academics and the other handling the finances. As Elie Mystal pointed out at Above the Law, that didn’t work out too well, as one dean has been put on paid leave and the other is running everything. So much for real change in Brooklyn.

Another reason schools won’t change: law school applications may be down, but they are far from out. Special Snowflake Syndrome, well-explained here by Professor Paul Campos, will guarantee an adequate flow of applicants to schools to keep the overwhelming majority of them afloat. In other words, 0Ls see the problems, but they have been raised to believe the problems won’t affect them.

Congress is our only hope?

So while some schools will continue to make minor, public-relations-driven, cosmetic changes, only the federal government can cut off the drug money supply that’s keeping law schools on their current addictive and self-destructive path. Another option for Congress would be to make student loan debt dischargeable in bankruptcy, as it was for many years. But while Congress is spending its time on more pressing issues, like voting to “overturn” Obamacare (again, and again) or passing restrictive abortion bills, the non-elite schools will just keep cranking out lawyers with no lawyering skills and few job prospects.

One solution that might not require Congress: the ABA could require for accreditation that law schools be responsible for a significant portion of their students’ debt. That would make a difference. But don’t hold your breath on that either, as the ABA has done little of substance to force change upon all those law schools it saw fit to accredit.

(image: man leaving afar by rail from Shutterstock)

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  • http://www.lawschooltransparency.com/ Kyle McEntee

    Andy, thanks for writing on this. However, I don’t think you fairly described my point.

    The point was not that schools are being forced to improve outcomes — though that is true, and happening very slowly and in uneven distributions across non-elite schools. The point is that law school economics are broken, and that market forces will disrupt how schools can do business over the next few decades.

    Transparency sheds light on this, affecting student decisions, but it also will affect decisions in the political realm. As you point out, that’s when the change will accelerate. My main thesis, then, is that when this change happens, if legal education isn’t better prepared for it, the market gets to dictate the outcome and where it’s headed isn’t obviously a good place. I’m cautioning people (specifically leaders in the legal profession) that bending the future only can happen if the drivers are changed are realized now. In other words, I hope that people are not distracted by the opportunity to change everything they think is wrong with legal education.

  • Matthew Chisholm

    I have been checking out this site for the past few days to see if it would live up to my dream of finding a modern, tech-intelligent lawyer blog. But I have to say, citing Above the Law for any reason worries me. The stench of their faux-witty pretension shouldn’t be spread on a serious site. Also, the rampant spelling and editing errors have me worried. Most of the comments, however, seem sincere and respectful. Anyone care to reassure me that I should keep coming back?

  • http://www.legalfunding.com/ RD Legal Funding

    This issue hasn’t reached critical mass yet but once it does some of the resolutions will be acted upon. Until then however the issues will remain and the institutions preventing change will continue their actions.