About Students and the Opportunity Cost of Curriculum

February 12th, 2013 / By Robert Rhee

The law school admissions process is odd. Among the major professional schools, law school has the lowest barrier to entry in terms of personal commitment to the profession. A student does not choose medical school as a “default” option.  A student cannot get into a credible business school unless she has significant work experience. Law schools require only a GPA and an LSAT score. Many law schools may not even ask the most important question, “Why do you want to be a lawyer?” The typical law student is probably 22-23 years old. She may never have worked a regular job, worked on a project where others depended on her, filed a tax return, or bought a car or house. This profile has important implications for curriculum.

Let me digress a bit here. Two weeks ago, I was in California for a symposium on legal education, and this gave me a chance to see some old friends from business school. One of my friends has a spouse who is in her spring 3L at a Top Ten law school (she does not have a job yet and the worst case plan is to work a year for free on the hopes of a job opening in her desired career). He is very involved in her world of law school, and sometimes even attends her classes and socializes with her law school friends. So we naturally got around to talking about law schools and one avenue of conversation was whether law students were smarter than our Wharton classmates.

My friend, a very smart guy having graduated near the top of our class (he carried a hapless lawyer (me) on our Learning Team during our first year B-school), observed that law students from his wife’s Top Ten school were intellectually sharper than our Wharton peers. But while their analytical abilities were “amazing,” he agreed with me fairly quickly that law students would be very limited in their capabilities coming out of school. While our business school peers were less intellectually oriented in their thinking process, they were smart enough to do complex tasks, more rounded in worldly experience, and had problem solving abilities. Present a real world problem and they would try to figure it out, and most of the time they would come up with a solution: How can we sell more hotdogs? What is the best way to maximize the efficiency of cranberry collection and packaging? How should this acquisition be financed? What are the pros and cons of this business model? Sure, these questions seem mundane, but to someone out there in the real world, a client or a principal, their answers are extremely important. The business school did a pretty good job of selecting and educating problem-solvers who would populate the middle and upper management ranks of businesses.

The limitation of the law school admissions policy is important. I’m not suggesting that law schools start to dramatically change admissions policies (that would bring on a catastrophe upon misfortune). But we have to realize that the law school admissions policy is odd, and we should fully account for it in how we teach and train. Medical students really want to be doctors (Organic Chemistry and Calculus have a way of screening out “default” doctor wannabes), and business schools have fewer “I’m here by default” or “I’m here because of a TV show about business” because if they hated working in business they wouldn’t go back to school to learn more. Law schools have young inexperienced students who don’t really know much about work in general or the legal profession specifically. Even if they have genuine noble intentions of doing social good, making a difference in the public sphere, and becoming the conscience of society, they do not come to law school with concrete or realistic plans on how to pursue a career following their noble passion, including such things as paying off debt.

Law school is also different from medical and business schools in that after 1L, we let these young inexperienced students essentially roam the 2L and 3L curriculum. Most law schools have a “big menu” curriculum and a bias toward student choice, and the curriculum is the student’s (and the faculty’s) mind candy. So let me ask this: Does anyone seriously think that typical 22- to 23-year-old students know what is in their best interest in terms of structuring a curriculum? This may explain the fact that 3L is characterized by student disengagement. After two years of edited appellate cases and the Socratic method, 3Ls probably do “think like a lawyer” on some level; otherwise it is a damning indictment that law faculties cannot even teach this one skill in two years.

Let me return to B-school again. The first year was largely required courses in management, accounting, finance, operations, marketing, ethics, leadership, and strategy (a general background in major facets of business operations). In the second year, students selected a major and they largely took courses in their major. If you selected marketing, it meant that you were selecting a career path in the marketing department of a corporation; you self-selected yourself out of a job in investment banking and maybe management consulting too. If finance, you were shooting for a career in investment banking, the finance department of a corporation, or management consulting; you self-selected yourself out of a job in marketing, etc. Even at one of the most elite B-schools, it simply was not true that the world was our oyster in terms of all possibilities.

In that fairly large school (almost 800 students per class), students sorted out in noticeable patterns very early: there were the investment bankers, the management consultants, the corporate managers, the entrepreneurs and the techies. Career decisions had to be made fairly quickly because business school moved fairly quickly in two years. Moreover, by having only one year to concentrate in a field, the courses were fairly standard and core. For me, it was Corporate Finance, Securities Analysis, Speculative Markets (derivatives), International Finance, M&A Accounting, and Investment Banking, among other courses. I can’t think of a quirky course and, since business schools take market input very seriously, a curriculum that has too many quirky courses would suffer in reputation and employment outcomes. Corporations, investment banks, and management consulting firms want their recruits ready to work from day one. Increasingly the market is imposing this discipline on the legal profession as well by rejecting their invoices and denying engagements.

In light of the limitation of the law school admissions policy, and the fact that entering law students don’t know very much, including what lawyers really do and legal career paths, it might make sense to use 1L to provide as much information as possible on legal careers and options. This could be done through formal programmatic partnerships with the profession: speakers, mentorship, “shadowing” and day visit programs, “meet and greets,” presentations on the “anatomy” of a deal or case, etc. Law schools need this sort of activitiy far more than business schools because of the experience gap.

This concerted effort would require institutional commitment and structure beyond the always-maligned career development office and the sporadic efforts of student organizations. It would require mobilization of a network of alumni and professionals in the furtherance of education and training. The pay-off is that systematic professionalization at a fairly early stage might prepare students to be more focused and directed in 2L and 3L.

What about the upper level curriculum? It might make sense to provide more rigid curricular “tracks” in 2L and 3L for students who want a formalized education and training in a particular field of law. Cover 90% of what students would do in practice really well, and we can go home and celebrate for a job well done. Many schools have “concentrations” and “certificate” programs, but many (but not all) such programs are probably more glitz, brochures, and Facebook pages than real substance. Sports law, really? Let’s consider a real concentration in Civil Litigation (something that is bread and butter, something that a great many of our students would do upon graduation). What would a real program look like? As a bare minimum, I would think that such a program in the 2L and 3L would include (italics indicating experiential or simulation courses): Insurance Law, Federal Courts, Complex Litigation, Employment Law, Alternative Dispute Resolution, Pretrial Practice, Commercial Law, Business Associations, Evidence, Business Concepts for Lawyers, Professional Responsibility, Negotiations, Trial Advocacy, Judicial Internship, Appellate Advocacy, and Litigation Clinic. As luxuries, one could throw in a few doctrinal courses such as Securities Regulation, Advanced Torts, Family Law, or Consumer Law.

Note that all of these courses are standard, core courses and not some flimsy practicum based on a practitioner’s “war stories” or teaching ministerial tasks like how to file documents and the local rules on signature blocks, etc. In terms of non-credit curricular activities, students should see a certain minimum number of trials in the local courts along with a personal journal on observations and critique; they should do a minimum number of hours in litigation-oriented pro bono work supervised by an attorney or faculty member; and they should have real experience or simulations in negotiating. At the end of three years, my guess is that this 26-year-old graduate can probably handle herself with pleadings, depositions, and in the courtroom with some degree of confidence, competence and usefulness to others (she might even be pretty darn good from the get-go!).

Can there be much room left for interesting electives or curricular roaming? Given a single choice, is a student who really wants to be a civil litigator better off with (1) a course in Insurance Law where she will learn to read and understand esoteric nuances of insurance contracts that allocate risk and liability, or (2) a course in an esoteric topic where she will no doubt have intellectually interesting seminar discussions? Why not room for both classes? Of course it’s feasible for any given student’s schedule and I’m not suggesting mutual exclusivity. The suggestion is simply an irrefutable fact of life as sure as death and taxes: All choices have opportunity cost. Time and money are not infinite resources. We can’t have our curricular cake and eat it too, and that’s the dilemma and the hand-wringing angst.

Lastly, here’s a prediction (I admit it may not be particularly insightful or courageous): if the current trends in the legal profession and legal education are structural and not cyclical, and if there is increasing outcome-based differentiation in hiring as markets rationally try to figure out how to do it beyond reliance on rankings and prestige as heuristics (just as the market is now rationalizing legal services), in the longterm the schools that best balance these competing tensions within their own competitive landscape will stand on a firmer foundation because 0Ls and the public in general are becoming more sensitive to outcome-based, economic criteria in making their decisions both to attend and to select the law school.

The fact that 0Ls this 2013 application season are rejecting law school in startling application numbers does not bode well for the health of the legal education sector. There may be some tipping point in the future where a financial calculator and employment outcomes may be more important to a larger segment of the applicant pool than the U.S. News rankings. My guess is that 0Ls are already figuring out that an additional $15,000 off sticker price tuition in a geographically preferable school with comparable employment data may be better than x number of rungs in the U.S. News rankings in a faraway state with higher sticker tuition (in a financial crunch, cash is king  . . . always). As employment data increase in quality under the glare of public scrutiny and with the work of groups like Law School Transparency, the financial calculator may provide the ultimate ranking in the era of the internet, blogs, Facebook, twitter, and smartphones.