This post argues that recent changes in legal education have harmed rather than helped most students and that legal education needs to change significantly, and predicts that no change will occur until it’s too late.

One significant change in law schools over the past twenty-five years is the bureaucratization of the institution. What were once fairly lean organizations have become bloated, and the increase in administrators is one cause of the greater-than-inflation increases in law school tuition. This increase in administrators, with the concomitant rise in tuition, has created a kind of chicken-and-egg problem.

The high cost of tuition has made many law schools leery of academic attrition (in part because if those former students don’t pay back their loans, the institution may find itself in trouble). You rarely see exclusion of one-third of the student body (I can think of just one school). But especially where bar exam passing rates have ranged considerably, because such rates can readily be compared, academic attrition has increased among a number of law schools in the past decade in order to pump up bar exam results.  One consequence has been the creation and rapid expansion of academic support programs for those students who are struggling. The theory behind such programs is sound. But though such programs can offer students tips on how to organize their study, and offer some study skills, I don’t think they can actually provide “academic” support in practice. 

The increase in the number of placement personnel is well intentioned, but particularly the very name, “placement office,” is a misnomer, for those offices don’t place students in jobs. Law students have to work to find jobs, something that has been true during nearly all of the existence of legal education (in this case I’m not even sure an exception existed for the period of the Golden Years).

When the ABA agreed to the antitrust consent decree with the Department of Justice in 1995, it forfeited much of the power it had regarding approval of law schools. The ABA’s understanding of the quality of legal education was attenuated at best, and often looked in exactly the wrong places for quality. I have had members of ABA site inspection teams visit my classes for no more than ten minutes. During at least one inspection, not one member of the ABA site inspection team visited my class. Surely the quality of instruction must be the most important ingredient to one’s legal education (not to one’s job prospects, for that can exist even if you roll snake eyes and get the “worst” professors in your assigned classes). But a qualitative interpretation was eschewed in favor of a quantitative approach (how many square feet of facilities, how many books in the library, etc.).

What law schools need to do is deliver an education at a cheaper price, giving more students greater flexibility in choosing what type of job to take (or create). Law schools have begun to see the problem, doubling their internal grants and scholarship monies over the past six years, but some of this is done by taking tuition money from one less desirable student and giving it to another, more desirable student. That exacerbates the problem, for sometimes (not always) the less desirable student struggles more in law school, leaving him or her with a ranking well below that of the “more desirable student.”

What law schools have done instead is move more strongly to the research model. This is demonstrated in the massive increase in the number of Associate Deans for Faculty Research (or similar title). What law schools understand is that faculty publication is related to institutional prestige, and institutional prestige is related to quality of students, and quality of students is linked with increased law firm hiring from the school. Now, this is a very jury-rigged system (especially given the bias in how law review articles are selected for publication), and, I think, one no rational person would construct. This is even more irrational because I am convinced that the top ten percent of students at all law schools can compete with students at any law school. What Harvard and Yale have going for them is depth, which is why it is rational for law firms across the country to recruit there (on the other hand, the sense of “chosenness” may actually argue against that, and the “striver” who performs excellently at a lower-tier law school may be a better fit). You don’t have to be a genius to practice law (indeed, being a genius negatively affects you as a practicing lawyer), and hiring smart, academically successfully, hard-working graduates from non-elite law schools makes sense to me. But all law schools want to be above average, and I think that still remains impossible.

So, the response to the critical issue of the cost of legal education has not been to re-think what law professors should do, or how to more efficiently transmit the skills and information important to the practice of law, but to redouble efforts to enhance scholarship. (By the way, I like scholarship and think it is an important part of my job. But I also think it is important to be at my desk with my door open and invite students to see me. And it’s really important to teach as well as I can, and look to continue to improve my teaching skills.)

I’ll tease the next post:

The most significant change that needs to be made is the end of tenure. Law schools are intended to be made for students; they have been captured by law faculty. The persistent reduction in classroom teaching hours was supposed to be balanced by an increase in scholarly/research productivity. For some, tenure provides the security to write about issues that might otherwise be toxic to a tenure-track faculty (one example: when I asked a tenure-track professor why she hadn’t written about her criticisms of Roe v. Wade, she told me she was waiting for tenure before doing so). But “surplus value” has been taken by faculty not for the benefit of their students, but themselves. More later.