This post is part of "Can the ABA Fix Legal Education?," a series of 2 posts. You can start at the beginning or see all posts in the series.

Last week, I discussed the ABA Task Force on the Future of Legal Education’s Draft Report. The report took a hard look at some of the challenges facing the profession, but did so through a lens of insisting that our education problems are unique to our profession. This week, let’s look at some of the specifics of those recommendations.

The report doesn’t exist just to be an interesting intellectual exercise, obviously. At root, we care about whether the proposed recommendations are feasible to implement and whether they would ever stand a chance of altering the course of legal education, if implemented. At the moment, the profession feels almost viscerally on the brink. It could be amazing as we free ourselves from arbitrary tools like the U.S. News and World Report. It could become genuinely fair about providing financial aid for students who actually need it rather than just chasing those students traditionally perceived as “high value.” Perhaps most radical and most important, it could reintegrate the legal profession with legal education and require that practitioners become stewards of the profession, committed to creating opportunities and mentorship for the newly graduate.

On the other hand, our brave new world could be dystopic, filled with law schools that no longer adhere to a consistent set of standards and the center no longer holds. One thing is certainly true, however: we can’t stay where we are.

Law school, why can’t you be cheaper?

In theory, one thing law schools can do without the assistance of the profession or external entities is redesign the funding structure of law school. The report tells us this, but it doesn’t really tell us how to pull it off. In addition, the report relies on some weird assumptions about how law schools have been insulated from market forces, which is probably news to law schools.

The report states that law schools don’t generally take market prices as a given, and therefore do not seek to limit or manage costs based on the market price. However, it also notes that law schools compete based on both quality and price. I’m not even a bit economically inclined, so I can’t really address the structural economic factors the report goes into, but even if one accepts the distinction between market pricing and competing on price, we’re back in the same place: law schools compete for students by altering their offerings and adjusting their prices. They do this through direct changes to tuition, but also through the structure of scholarship packages on offer.

This, of course, brings us to the 800-pound gorilla in the room. From the report:

To begin, there is relatively little scholarship funding or discounting provided to students on the basis of financial need. Rather, the widespread practice is for a school to announce nominal tuition rates and then use extensive discounting to build class profiles it finds desirable. In particular, schools pursue students with high LSAT scores and high GPA’s. Students who do not contribute positively to the desired class profile receive little if any benefit from discounting and must rely extensively on borrowing to finance their education. A result of such practice is that students whose credentials are the weakest incur large debt to subsidize higher-credentialed students and make the school budget whole.

In short, law schools definitely use the tools at their disposal, like scholarship packages, to ensure they get the students they want, which is, obviously, engaging in the market.

Is this arrangement terrible? Undoubtedly. Such a financing scheme undermines a system at least partly meant to get aid to needy students. And it requires us to acknowledge an ugly truth: poorer and poorer-performing students end up subsidizing wealthier and higher performing students. Unsurprisingly, this isn’t a problem just for law schools.

Over the years, many state-university systems — and even states themselves — have shifted more of their financial aid away from students who need it toward those whose résumés merit it. The share of state aid that’s not based on need has nearly tripled in the last two decades, to 29 percent per full-time student in 2010-11. The stated rationale, of course, is that merit scholarships motivate high-school achievement and keep talented students in state. The consequence, however, is that more aid is helping kids who need it less. Merit metrics like SAT scores tend to closely correlate with family income; about 1 in 5 students from households with income over $250,000 receives merit aid from his or her school. For families making less than $30,000, it’s 1 in 10.

Schools don’t seem to mind. After years of state-funding cuts, many recognize that wealthy students can bring in more money even after getting a discount. Raising the tuition and then offering a 25 percent scholarship to four wealthier kids who might otherwise have gone to private school generates more revenue than giving a free ride to one who truly needs it.

The fact that this is a problem for everyone doesn’t make it any less of a problem for law schools, but it also means that it is not terribly likely that it will be solved easily, particularly for law schools attached to a larger university system (which is, of course, many of them). The report punts on this a bit and suggests the ABA examine this more fully, but also acknowledges that any substantial change is extremely difficult because of the persistence of the model where law schools chase a relatively scarce number of high-value students.

In other words, all the task forces in the world probably won’t change the fact that cash-strapped schools are going to cost-benefit analyze their enrollees and take the ones that are likely to give them the most prestige vis-a-vis rankings and are the most likely donors down the line. To make radical changes in legal education requires a re-thinking of how we fund higher education in the United States and how that funding reflects our values. Only with that global shift in thinking could law schools begin to change how they value students.

Law school, why do you have so many students who aren’t finding jobs?

There’s another enormous gorilla in the room, but he report barely makes mention it: the flooded legal market. The report does acknowledge that there have been decreases in hiring and increases in use of temporary or contract labor, but as an overall observation regarding the employment market, simply states:

The supply of lawyers appears to exceed demand in some sectors of the economy.

This is an understatement of epic proportions. Last year’s employment statistics as collected by the ABA itself are grim, to say the least:

Law schools reported that 56.2 percent of 2012 graduates were in jobs requiring bar passage, the figures show. But that’s still a slight improvement over last year, when only 54.9 percent of all 2011 graduates had full-time, long-term legal jobs nine months after graduation.

Another 9.5 percent of 2012 graduates were employed in jobs in which a law degree is preferred, which is a slight improvement over the class of 2011’s numbers, when 8.1 percent of graduates held so-called JD advantage positions.

The data also shows that 10.6 percent of all 2012 graduates were unemployed and seeking work, a 1.4 percent increase over last year, when 9.2 percent of all 2011 graduates were reported as unemployed and seeking work.

Ouch. This lack of opportunity is really hard to square with one of the report’s proposed solutions to maldistribution of legal resources, both in terms of geography and cost: allowing non-lawyers to provide some legal services or create a quicker and less onerous path to licensure. Don’t get me wrong. This may actually be a fantastic idea for the world at large, and seems akin to the medical profession’s increased use of physicians’ assistants and nurse practitioners. To be sure, those practitioners tend to come at a lower cost than doctors, which can benefit consumers. However, insurance in medical care often flattens those differences so consumers have no real incentive to choose the lower-cost provider. Related, insurance often restricts access, so consumers may have no mechanism by which to refuse service by those individuals either.

In the law paradigm, it is difficult to see how the non-lawyer model wouldn’t simply cause a flood of consumers to the non-lawyers — and that isn’t good for people going to law school. Again, it may be good for the profession as a whole if we think of the profession as a holistic robust entity that encompasses many entities (and the report certainly contemplates that) but it is distinctly opposed to helping law students in terms of successful access to markets.

Law school, why don’t you lower your standards?

The report uses some fairly common education buzzwords — innovation! risk-taking! experiments! — to speak generally about how legal education might change. In terms of specifics, the report states that adding new or strengthened requirements to legal education should be discouraged:

Prescriptions, when well crafted, can have the benefit of marking boundaries of what is permissible or obligatory. In doing so, and in appearing to control action, they seem to provide easy solutions. Yet, they only work if they can credibly be enforced. Thus, they require enforcement mechanisms—sometimes complex ones.

These can be costly and the costs may be passed on to the regulated parties (here, law schools and ultimately students). Prescriptions, if effective, are also relatively inflexible and so have the disadvantage of requiring periodic updating to adapt to changing conditions. The Task Force generally recommends against new prescriptions as the solution to current problems in the system of legal education.

Instead, the report encourages the liberalization or elimination of a number of ABA standards. Among those standards on the chopping block are:

  • Standards relating to how long – in minutes or years – that it must take to receive a J.D, therefore allowing a swifter path to licensure.
  • Standards relating to full-time faculty and student faculty ratios, essentially allowing for fewer full-time tenure track faculty, higher ratios, and law school deans that are not tenured faculty.
  • Standards relating to delivery of instruction, including allowing distance learning and relaxing the physical facility requirements.

These calls for flexibility echo the refrain of education reform at the K-12 level, particularly as it relates to charter schools. Take a look at the Center for Education Reform’s most recent scorecard, which ranks each state’s charter school laws. The states with high grades are invariably states where the law exempts charter schools from most state requirements that otherwise govern public schools. In theory, this flexibility leads to better performance as schools are able to become laboratories of innovation. In actuality, the much-lauded flexibility results in performance that can charitably be described as uneven.

In this [2013 Stanford] study, 19 percent of charter schools posted gains in reading that were significantly weaker than their traditional public counterparts, and 31 percent were weaker in math. Greg Richmond, president and CEO of the National Association of Charter School Authorizers, notes that these are similar to his organization’s finding last fall that between 900 and 1300 charter schools were performing in the bottom 15 percent of their state’s accountability system.

Setting aside the political issues that often surround discussions of educational reform, it is indisputable that flexibility does not necessarily lead to better results. In addition, it is worth revising a point from last week: there doesn’t appear to be anything in the standards that prohibits, say, a rural legal provider track or a practice-oriented school. The standards would currently prohibit a vast expansion of distance learning, for example, but that caution is reflected in other areas of higher education.

Alluring as flexibility and standards-revising might be, it is impossible to think about major innovations without running into one of the biggest problems law schools face. Yep, I’m talking about rankings

Law school, what are you going to do about U.S News and World Report?

The report is critical, and rightly so, of the practice of using law school expenditure data in creating the U.S. News rankings. If schools have a higher rank based on expenditures per pupil, there’s a strong incentive to increase spending, regardless of whether that spending actually benefits students. Prior to the issuance of the report, the ABA took a big step and made a decision to no longer collect that sort of data from schools and sent a letter to deans expressly noting that the ABA hoped that decision would deter U.S. News from requesting that information for their rankings. Unfortunately, it didn’t. U.S. News’ most recent ranking survey sent to law schools contains the same expenditure questions as previous years. However, U.S. News won’t confirm whether or not they’re using the expenditure information, even though they’re demanding schools provide it.

The University of Chicago’s Brian Leiter has done yeoman’s work in breaking down the absurdity of the U.S. News rankings over the years, and he maintains a handy guide for the perplexed at his website. Leiter notes that a lot of the factors U.S. News relies upon are factors that are manipulable by the school itself, such as median LSAT scores and GPA of enrolled students.

Those median measures, Leiter notes, explicitly favor smaller schools with lower enrollments, as smaller numbers of students with high scores must be enrolled to hit a high median number. The report pointed out that there’s essentially an arms race for those high value (high LSAT, high GPA) students, and the “low value” students pay for that arms race. This part of the rankings virtually guarantees that will not change.

U.S. News rankings also focus, albeit more minimally, on things like student-teacher ratios at schools. Were the ABA to relax the student-teacher ratio requirements, as the report suggests, what schools would consider doing so given the potential to affect the U.S. News rankings?

Put simply, law schools can get flexible and innovative all they want, but in the end the potential hit in the rankings is likely going to deter schools in the top two tiers of the U.S. News rankings. Strong market competition means that schools vying for top spots can’t take the chance of that slippage. So, we’ll likely continue to see what we have in the past: schools that are lower on the rankings scale will sometimes take a chance — a part-time program here, specific recruitment and funding of students not typically believed to be as desirable there — because they’re down far enough that the rankings aren’t their biggest draw for students.

Law school, where do we go from here?

Honestly, it is really tough to say. There are some  strong institutional factors — in legal education specifically, in higher education generally, and in the legal field as well — that are huge barriers to change. The Report is an early step in the process, and like many early steps, it is a combination of brashness and naiveté. Currently, there’s a plan to discuss the report’s recommendations at the ABA midyear meeting in 2014 and there will be more revisions to the report before then. Absent strong buy-in from the profession itself — helping to dismantle the hegemony of the U.S. News rankings, creating better post-graduation opportunities for students, particularly in rural areas, making a commitment to fund legal education for a wide variety of students — the report’s best intentions – and perhaps the profession – will wither on the vine.


One Comment

  1. JJ says:

    Having been educated under the traditional law school system, I cannot wait to see true change brought to how lawyers are educated and regulated. Not only is law school too expensive and too long, but it simply does not prepare a student to practice upon graduation. Furthermore, we would benefit from a national bar exam/licensing regime that allows young people to more quickly move to where the jobs happen to be. The quaint, provincial regulation of lawyers dictated by the states at the behest of the ABA is a 19th century style method of protecting entrenched interests that attempts to masquerade as consumer protection. Really, does the Maine bar exam test different material than the Wyoming bar exam? I think not. Law school was originally conceived as a finishing school and preparation for practice – replacing the office apprenticeship of yore. Along the way it turned into a system of scholarship, political positioning, and lifetime tenure for the fortunate few. Perhaps we should consider making the LLB a two-year degree that allows for one to become a licensed practitioner, and reserve the J.D. for those who wish to practice scholarship – as no one considers a practicing lawyer a “real” doctor, anyway.

Leave a Reply