What’s driving change in legal education and why you should care

May 30th, 2013 / By Kyle McEntee

This piece was originally published by the ABA Journal.

Change is coming to a law school near you. Economics will drive the change, but the exact configuration will depend on choices made by law schools, state supreme courts, the ABA, and Congress over the next few years.

Without intervention, market forces are likely to segment law schools. Are schools and the profession content with that outcome? The question warrants serious debate.

Law schools have entered crisis mode as word spreads about their costs and job outcomes. In recent years, tens of thousands of graduates have struggled to enter the legal marketplace and find professional jobs with salaries that permit them to service student loan debt. As a result of a steep drop in applications and enrollment, schools face a budgetary crisis—one certain to change the face of legal education. We can bend the future, but only if reform happens through the lens of fixing law school economics.

The drivers of this change are on course to stratify legal education for lawyers into two layers.

One group of law schools—perhaps a few dozen “elite” schools—will continue using the traditional model. Research faculties will teach high-achieving students from around the country and world. Graduates from these schools will continue to obtain the most competitive jobs after achieving traditional market signals like high GPA and law review membership.

These schools will be cheaper by today’s standards, yet expensive by any reasonable measure. Classes will follow a curriculum designed using core lawyering competencies and will involve more simulations and more writing.

Overall, elite schools won’t look much different than today’s law school—a professional and graduate school hybrid that tries to simultaneously serve both the legal profession and the pursuit of knowledge. Nevertheless, they will feel different because the educational product will be more skills-oriented.

The second group of law schools—perhaps a few hundred “local” schools, including new ones—will use a model centered on teaching faculty. These schools will have similar educational approaches to the elite schools, but look much different. 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.

Affordability will be a feature, but local schools will be defined by the ownership the local legal community takes in educating future members. The result will be a faculty that fluidly moves between practicing and teaching.

A transient faculty will provide opportunities, but also a set of challenges for these schools, particularly how to ensure a high-quality, consistent product that’s capable of teaching each student what they need to succeed. To overcome some challenges, schools will share faculty—sometimes across town, sometimes across time zones—and course materials because it’s more efficient than trying to hire for every need and having part-time teachers reinvent the wheel each term.

Although it’s the broken economics of law school accelerating reform discussions, demands for change concern just about every aspect of law school and come from diverse perspectives. Many stakeholders view the crisis as an opportunity to shape the future. Not everything needs to or will change, but widespread dissatisfaction has put everything on the table.

There are three main drivers of change, each tied to the future I’m predicting:

First, the cost of becoming a lawyer is too high. Tuition skyrocketed because law schools operated in a completely dysfunctional market. Law students (and therefore law schools) had unfettered access to student loans with little downward pressure on the borrowing. Attitudes about student debt were unsophisticated and schools enjoyed an information asymmetry about post-graduation employment outcomes. While the loan system still provides blank checks, applicants now have credible employment information and are becoming increasingly price-sensitive.

As the applicant market becomes more functional, at-risk schools will cut their budgets to meet demand. Surviving schools will be those that accept the need to reinvent rather than rely on minor changes. Budgets are largely personnel-driven, so most schools will need to figure out how to more leanly deliver education. This will all but necessitate involvement from the local bench and bar.

This brings us to the second driver: the bench and bar. Practicing lawyers and judges are fed up with the quality of education. The steady drumbeat for more practical skills training isn’t new—in fact it’s a century old. But the opportunity for reshaping law schools is new because of the information about and coverage of their broken economics. The trouble: Creating a law school experience that the profession wants requires a redefinition of the law school mission. It must become more professional school than graduate school.

The opportunity stems partly from the third driver: the legal profession’s structural transformation. The media began paying attention to law graduate struggles when it became apparent that even graduates of the country’s most elite schools struggled in “the new normal.” This accelerated the decline in the JD’s perceived value and invited a multitude of skeptical voices to shout their discontent.

Yet the structural change has been more gradual. Over many decades, practice has grown more complex and specialized. Technology, globalization and the unbundling of legal services have accelerated the change. The legal profession of the future looks different; so too will the education system that produces its members.

Upholding the broad and often elusive principles of the American legal system—such as equality, opportunity, and justice—requires a legal education system that’s not merely subservient to market forces. Successfully addressing the drivers of change without flattening essential principles depends on whether the solutions explored and adopted provide more than lip service to the broken economics of the modern law school.

If we lose sight of what’s causing the change, we may lose the opportunity to bend the course for the better.