Can the ABA Fix Legal Education?
(Part 1 of 2)

Broken Egg

The ABA task force responsible for coming up with ideas for fixing law school released its draft report and recommendations last month. Like the legal profession itself, the task force’s document is in turmoil. The task force starts out by pointing out what should be obvious: there are problems in legal education, and we need to address them as swiftly as possible. After that observation, it goes from straw-grasping suggestions for ways the legal profession might save itself to proposing big solutions that rely on sweeping, immediate changes to professional and public policy requiring wholesale buy-in from lawyers and legislators.

Above all, the report showcases the legal profession’s special-snowflake syndrome. The members of the task force — like most lawyers — desperately want to believe the legal profession is so different from other professions that its greatness, problems, and solutions must all be unique. As you’d expect, this mindset creates some big problems of its own.

Big-picture recommendations

Law school financing must change. The current scheme encourages over-distribution of scholarship money to “high-value” students – those with high LSAT scores – while giving far less aid to students who are entering with lower past performance and expected lower future prospects. Thus, concludes the report, the students who struggle the most and are least likely to obtain well-paying jobs upon graduation are the students who will likely carry the highest debt load.

Legal education must create a system that provides for continuous assessment and improvement.

The ABA should immediately consider relaxing a number of key standards, including:

  • Requirements as to the percentage of full-time faculty an accredited institution must have.
  • Restrictions on distance learning,
  • Restrictions on hours of attendance

Make no mistake. The changes proposed are enormous. If there were all implemented, it would be a revolution in how we teach and learn and prepare students for practice. But should they all be implemented? Next week, we’ll take a look at how each of these changes might affect the profession and if they’ll make for better lawyers, a better job market, or both. This week I will talk about how the report came to be and how it probably reflects — consciously or not — some blinders we have on when it comes to our profession.

Let’s move fast but ask everyone what they think first!

The report provides a number of insights into how and why it was created. Comments were accepted for close to a year. There were hearings in Dallas and San Francisco during ABA meetings. There was a mini-conference in Indianapolis dedicated just to the work of the task force. There were meetings with the Association of American Law Schools, many many meetings with other ABA sections, meetings with higher-education folks, and with the Conference of Chief Justices. In short, there was pretty much all the discussion imaginable — and they did it in one year instead of the two they had been allowed to take.

Given this short-but-packed timeline, I took the opportunity to talk to the draft report’s, well, reporter, to learn more about its creation. Professor Jay Conison is Dean of the Charlotte School of Law. Dean Conison has served on law school site inspection teams, blogs about legal education, and has promoted clinical and skills education. Conison told me that the report was completed in the one-year timeframe, in part, because the task force knew it had to move quickly in order to have an impact on the discussion of pressing issues in legal education. In addition, people are very eager for action on this issue, and Conison explained that the task force really did not have the luxury of waiting two years.

I was curious as to how much the rise of concerns and criticism from outside the legal profession — think New York Times instead of Harvard Law Review, for example — motivated the task force’s haste. Conison noted that certainly some of the comments and criticisms they received reflected broader concerns rather than simply those of legal educations. In addition, Conison explained that the issues affecting legal education also affect other constituencies. For example, legal education’s issues affect students’ decisions about where to apply, and the attitude of the public at large about lawyers and legal education generally. More importantly, as the report itself mentions and Conison explained further, the big issues facing the profession, like debt, career prospects, and decreasing numbers of applicants, were directly affecting public confidence in our system of legal education. The education of lawyers serves a public interest; if we lose the confidence of the public at large in that education, the legal profession, Conison noted, must get ahead of that issue.

Law school and lawyers: we’re just like everyone else except when we’re not

In the report, the task force really struggles with its idea of who we are as a profession, and with what that means for how we educate lawyers. This isn’t a fault of the report as such. The profession is deeply conflicted about who we are on many levels.

One of the dominant paradigms in the report is the idea that law school is both a public and private good. No argument there. Training lawyers has public implications (do we end up with good, ethical lawyers?) and private dimensions (do we have people that get good, satisfying jobs?). However, the report seems to think this is a problem unique to lawyers:

The fact that the training of lawyers is a public good is a reason there is much more concern today with problems in law schools and legal education than with problems in education in other disciplines, like business schools and business education.

This statement is probably news to business schools in particular. For example, Harvard Business School just struggled through a two-year “experiment” (their odd term, not mine) where it gave the School a “gender makeover” as an attempt to address the gender disparities that plague business schools. The way Harvard approached this issue was focused explicitly on the public impacts of a business education:

The [Harvard] dean’s ambitions extended far beyond campus, to what Dr. Faust called in an interview an “obligation to articulate values.” The school saw itself as the standard-bearer for American business. Turning around its record on women, the new administrators assured themselves, could have an untold impact at other business schools, at companies populated by Harvard alumni and in the Fortune 500, where only 21 chief executives are women. The institution would become a laboratory for studying how women speak in group settings, the links between romantic relationships and professional status, and the use of everyday measurement tools to reduce bias.

Moreover, it seems almost any profession can be said to have a public-private impact. We would like our plumbers to be good, ethical, fair-billing, non-discriminatory plumbers, and we would also like plumbers to find good, satisfying, well-paying jobs.

So, part of our discussion on how to address the problems we face has unfortunately started by talking about how different and special we are. That, to me, is a problem in and of itself. If we begin by setting ourselves apart in a fashion that isn’t really true or necessary, we’re already stuck in a framework where our problems seem less fixable. Why not view us like business people or plumbers or teachers or whoever? We all bring necessary public services to the world, and we all struggle with private challenges in education.

To be fair, there are ways the legal education structure is different, particularly in terms of institutional structures and goals. With that in mind, some parts of the report suggest that law school might be better if, well, it wasn’t like law school. Unfortunately, this leads to some inapt comparisons.

Law school, why can’t you be more like your sister the professor or your brother the doctor?

First up: wishing that law school could be more like non-professional liberal arts undergraduate and graduate courses. Why can’t law school be more like those institutions, which often allow for greater innovation in terms of course content and distance learning? From the report:

It is useful to compare the system of law schools with the college and university system in the United States. The latter is marked by a modest degree of standardization (e.g., an undergraduate program generally of four years) with substantial variety beyond that. Some colleges or universities are highly focused on research; some are highly focused on undergraduate teaching. Some are schools of access; some are highly selective. Some are multi-campus; some are single campus. Some have a high level of distance instruction; some are entirely residential.

This diversity suggests it might be possible to imagine a system in which law schools with very different missions might be accommodated, say, for example, a school where relatively little time was committed to faculty research and publishing and much more time spent on practice-ready training.

In other words, could law school free itself of the rigid doctrinal course requirements that are the hallmark of every movie about law school ever?

The quick and caustic answer is of course not. We are a profession the very existence of which depends on some level of continuity and standards. To be fair, those standards differ from state to state, but the umbrella accreditation model of the ABA stops states from straying too far in terms of who can be licensed. The report suggests that a relaxation of those classroom standards would lead to greater innovations such as law schools that focus on practice readiness rather than doctrinal achievement.

That suggests that, absent a relaxation of those standards, we’ll never be able to shift focus to things like a practice-ready school. I’m not so sure I agree. I graduated from, and teach as an adjunct at, a law school (William Mitchell College of Law) that is rightly perceived to focus more on practice readiness than most schools. Since at least some law schools are already doing at least some of what the task force recommends, it’s unclear what barriers the ABA believes need to be removed to ensure more things like this happen.

The report hints at, but doesn’t quite come out and say, that the real barrier to innovation might be the culture of legal education rather than any systemic barriers. How will we continue to insist that Yale is the best law school and Joe-Bob’s Big School of Law isn’t? Could a consumer fairly distinguish between those of us that went to a practice-ready school and those that did not? Put another way, if we relax the doctrinal requirements, is there an objective method that can replace it to assess whether a given school reliably turns out high-quality lawyers? Is that even possible? Does it matter? Would the US News and World Report rankings prevent those changes regardless of how enthusiastically the profession embraced them? (Next week, I will tackle this last question.)

Why can’t law school be more like med school and provide for better distribution of services?

In some rural areas, for example, there are few lawyers and it is difficult for communities to encourage new ones to set up practice, either because of low prospective return on investment or lack of interest in small town or rural life.

Most strikingly, poor and lower income populations remain underserved because lawyers can be made available to clients like these only if the lawyers are paid or subsidized by a government or private benefactor. Funding for lawyers to serve these populations is far less than what is needed and, except as noted below, there are few alternatives to fully trained lawyers as providers of law-related services.

Of course, there is nothing stopping law schools from placing a specific emphasis on providing legal services to rural areas, just as certain medical schools do. Indeed, Dean Conison noted that his state, North Carolina, has been discussing the maldistribution of legal resources and the fact that many rural counties are woefully underserved. Related, Dean Conison said he’s not aware of any current constraints in the ABA standards that would stop a law school from providing specific education to assist students in becoming rural practitioners.

So, on the school side, we can likely train people to address distribution problems as needed. However, we don’t really have the mechanisms in place to address those problems outside of the law school setting, and that’s where the comparison to medical schools breaks down.

Medical school residencies are funded in large part by Medicare and, because of that, remain fixed at a relatively low number. In addition, all accredited medical schools have students participate in the dreaded “Match Day,” where you agree to go to wherever will have you if you match up. It’s like a blind date, except you have to move somewhere else for years at a time. Law school has no such animal. There’s not a fixed funding stream of money from an external source. There’s not a requirement that the profession work to train recent graduates. There’s not a student body that is accustomed to the possibility that they would have to relocate for a few years to participate in the next phase of their education.

Given that medical residencies are relatively fixed, medical schools address this problem by working hard to narrow the entrance point — admission — to ensure that they don’t have a class full of graduates who can’t get residencies. Were law schools to work as aggressively to narrow entrance, there might be a functional solution upon exit from law school that involved subsidized post-school learning for a smaller, fixed number of students. However, that’s a solution that relies upon the profession as a whole to radically change direction in terms of how new lawyers are hired and trained. It would also require a dedicated funding stream from outside sources.

Speaking of dedicated funding streams, that is another way in which med school can make rural residencies more attractive. There is a network of quite generous loan-forgiveness programs that receive both federal and state money to incentivize newly-minted doctors to go rural for a few years. To do what medical schools do, there probably needs to be a lot fewer students and a lot more responsibility — and a lot more money — on the part of the profession in terms of training the students that remain.

Maybe law school isn’t so unique, after all

So, law school probably doesn’t need to be like undergraduate liberal arts programs and can’t be like medical school. So, what can law schools do? Unfortunately, much of what law schools can do probably requires buy-in from the universities that house law schools, and from the states that provide some level of regulatory oversight over who becomes a lawyer. More importantly, some key changes require that the profession radically alter how it spends time and money on training students once they leave the classroom. Finally, the changes would need us to reassess how we think of law schools in terms of what is best and most prestigious.

These seem like daunting challenges, but they’re also likely not unique to lawyers or law schools. Domestic job markets have both radically changed and shrunk in any number of sectors. Universities have been faced with declining enrollment and increasing costs for years and have thrown every possible solution at those problems to see what will work. Many schools and scholastic career paths face constraints from their accrediting organizations, which have an interest in maintaining a homogenous environment across all schools. Many trades feel hamstrung by state regulations that dictate who can do their work and how their work can be done. Similarly, lots of professions struggle with how to train their new graduates, although frankly many of them do that much better than the law. Other jobs that require post-graduate education and are perceived as high-profile – think banking, doctors, big-time CEO thought leaders – struggle with an unwarranted perception that only some schools are prestigious enough to turn out the most desirable graduates.

Don’t get me wrong – I think that taking a hard look at the challenges facing the profession is an idea that is long overdue, but framing it as problems that arise because we’re so special and different leads to some big blind spots about how we’re going to fix things. Getting rid of our sense of how very unique we are might be one of the key steps to fixing what’s broken.

The report makes several specific suggestions – like exactly which ABA standards should be relaxed – and discusses several broad-brush solutions – like how to reshape law school financing. These solutions are more specific to the structure of law schools in particular, and may have more direct impact on the profession if they’re handled correctly. More on all those next week.

(image: http://www.flickr.com/photos/talatlas/2284113599/)

Law School

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  • Gordon Babe

    I haven’t had the opportunity to peruse the report in any detail, but does it consider strategies used in other common law jurisdictions?

    I am a solicitor in WA (that’s short for Western Australia, not Washington, so I tend to use strange words such as ‘solicitor’ rather than ‘attorney’), where we have not historically had the same problems as your profession that you indicate above. One of the key differences that springs to mind is the path to admission to practice.

    In a nutshell, it is almost impossible to be admitted as a solicitor in WA unless you have a job (which is essentially an apprenticeship) for the first 12 months after graduating, and you are required to be employed by an experienced lawyer or firm for your first 1.5 – 2 years after admission. It also encourages people to ‘go country’ in order to get a position. It’s hardly a hard and fast rule, but this system has tended to limit the number of law school places by implicitly linking them to the number of jobs.

    This is at odds with what I understand of the ‘bar exam’ system generally used in the US, but I don’t know of many lawyers here who would be in a great rush to change it.

  • myshingle

    I didn’t see this post – I don’t know what should be changed or not; I just want schools to incorporate no-brainer tools to produce graduates who are useful to me. http://myshingle.com/2013/10/articles/trends/open-letter-law-school-need-teach-students-make-employable/

  • Lygeia

    The medical school model is not the correct model to use in relation to law school.

    In order to be a doctor, you still pretty much have to at least see your patients, if only for five minutes.

    Lawyers can work remotely with a laptop, a modem/WiFi, and an Internet connection.

    The real issue appears to be that legal people need the ability to work multijurisdictionally. Meaning, if you graduate from a New York law school, you should be able to work virtually (online, using the Internet) from Costa Rica or any other state in the U.S. or any country in the world for that matter. Kind of like an MBA. That’s a better model to use than medical school.

    An even better model to look at is online rabbinical schools and the issues that arise with thse. The rabbis who attend these schools, and the communities they serve, have some of the same issues that lawyers and law students have.