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Unbottling Legal Education
January 23rd, 2013 / By Deborah J. Merritt
The JD is a terrific degree, but it’s an expensive one. Most students take three full years out of the workforce to earn a law degree; they also pay significant tuition for their education. The shrinking job market has reduced the immediate return on that investment, and no one knows what today’s graduates will face five or ten years from now. A JD costs more, but promises less, than it did a generation ago. College students are responding to that equation; many fewer of them are applying to law school.
Law schools will adopt several strategies to respond to this market shift. Some are increasing scholarship aid, effectively reducing tuition. Others are cutting class size. Still others are increasing the number of foreign LLM students they enroll. Many schools may pursue all three paths.
Relatively few schools, however, have considered “unbottling” legal education. In today’s economy, more workers than ever apply legal rules. Law is so pervasive in our society that it has ceased to be the exclusive province of lawyers. Compliance officers, HR managers, architects, engineers, insurance agents, realtors, mediators, and workers in dozens of other categories use the law. They all need to “think like a lawyer” at least some of the time.
We are legal educators, but we do not try to educate any of these workers. Instead, we deliver legal education in a single, tightly corked bottle: the JD. We do offer LLMs for domestic and foreign students, but most of those programs target students who have already consumed their first law degree. Why don’t we unbottle our legal education and serve some of it to other types of students? Here are five reasons why schools might not have done this in the past, but why we should consider doing so now:
1. We will undermine the demand for JDs. For better or worse, it’s far too late to worry about this now. At one time, lawyers may have been able to restrict the activities of realtors, accountants, HR managers, and other people who use the law, but those barriers fell long ago. As one of many signs of the times, a district court recently rejected the IRS’s attempt to regulate “tax return preparers.” From individual citizens who probate wills with court-published guides, to corporations with hundreds of HR workers, our society is full of people who use the law without lawyers.
Rather than resist this trend (which is irresistible, given the extent of legal regulation today), why not embrace it? Why not provide courses for undergraduates who will work as compliance officers or HR managers? Why not educate citizens on how to complete basic legal transactions? Why not offer specialized courses for engineers, architects, computer software designers, and others who use the law?
2. Thinking about the law is complicated; you can’t teach it in less than three years. If this is true, we’re in trouble as a society. Almost everyone in our law-driven society has to think about the law. Who are we to say that non-JDs are incapable of engaging with the law at any level? There’s no need for every engineer, small business owner, intestate heir, or compliance administrator to synthesize cases or argue before the Supreme Court. But all of these citizens can benefit from some basic education in legal principles and thinking like a lawyer.
We will still educate JDs to analyze the finest points of law, pursue new regulations, and reconcile policies with legal principles. But the market is telling us that today’s society needs fewer JDs and more citizens with some grasp of the law. If we don’t fill the latter need, someone else eventually will. If we’re true educators, we can find ways to teach people what they need to know.
3. Faculty don’t want to do it. This is probably true. Law professors are accustomed to teaching JD students and they like teaching those students. A few hanker to teach undergraduates, but they probably don’t want to teach those students the basics of banking regulation. Soon, though, at least some faculty won’t have a choice. If we want to keep our institutions in operation, if we want to teach any students and do any scholarship, we may need to broaden our educational base.
4. Faculty won’t know how to do it. This is probably also true. For most of these new audiences, the case method and socratic questioning won’t do the trick. Don’t get me wrong: I don’t envision teaching non-lawyers to memorize a few black-letter principles. In any job, the best workers understand why particular rules apply; they know the origin of the rules and their intended purpose; they also have the capacity to identify new situations that fall outside of a prior rule. As legal educators, we should develop those facilities in all students we teach. But we may have to develop new methods and pedagogies for teaching non-JDs.
On the upside, faculty who are willing to invest in these new methods will realize two gains. First, we will educate a much broader base of students–benefiting both those students and our own institutions. Second, we almost certainly will improve the teaching methods we use for our JD students. Although there are many innovators in law schools, we are still quite complacent about our basic pedagogy. Teaching new audiences will challenge us to think about how we teach law and legal reasoning to any audience.
5. The bottle may be emptier than we thought. What if we uncork our JD bottle, look inside, and discover that there’s less in the bottle than we were claiming? What if “thinking like a lawyer” isn’t as distinctive as it was fifty years ago? What if other types of thinking are as important–or more so–in today’s economy? What if it doesn’t really take three years to learn how to think like a lawyer?
These are realistic fears. When I went to law school in the late 1970’s, I thought legal reasoning was pretty impressive. But it wasn’t the only rigorous analysis I learned. As a college senior, I took an economic policy course from Thomas Schelling. That course blew me away; thirty-five years later, I still remember the thought exercises from Schelling’s class. More recently, I’ve been reading the work of psychologists and management theorists. Those experts have some pretty impressive thought systems as well.
As legal educators, our own bottle is far from empty. But today’s market won’t allow us to be arrogant about what we provide. We need to look inside the bottle, candidly analyze the contents, and explore how legal education could serve the needs of students outside the traditional JD class.
Earn the Third Year
January 18th, 2013 / By Deborah J. Merritt
Samuel Estreicher and Daniel Rodriguez published an op-ed in the New York Times discussing Estreicher’s idea of an optional third year of law school.
Derrick A. Bell, Jr.
January 9th, 2013 / By Deborah J. Merritt
Derrick A. Bell, Jr., started law school in the mid-1950’s, shortly after the Supreme Court’s momentous Brown decision. It must have been a time of hope for a talented black student, one who had already completed a successful tour in the United States Air Force. But it was also a time when rhetoric conflicted with reality. Bell was the only black student in his law school class, and one of only three black students in the school. He secured a spot in the Justice Department’s prestigious Honors Program after graduation, but the Department forced him to resign when he joined the NAACP.
Bell moved on to work with Thurgood Marshall, Robert L. Carter, and Constance Baker Motley on the difficult post-Brown tasks of dismantling segregation. He supervised more than 300 school desegregation cases, returned briefly to the federal government, and directed a center on law and poverty.
Harvard Law School invited Bell to join its faculty, and in 1971 he became the school’s first tenured black professor. He remained in the academy until his death, teaching at Harvard, Oregon (where he also served as Dean), Stanford, and NYU.
Bell was a controversial member of the academy. He wrote–and spoke–bluntly about racism. His views often offended white professors, but Bell persisted. Throughout his life, he flew at the front of the wedge in confronting racism and promoting integration. Bell’s tenaciousness, insights, and eloquence paid off. He changed, not only the face of the legal academy, but the way in which scholars, lawyers, and ordinary citizens think about racism and the law. On Sunday, the Association of American Law Schools honored Bell with its Triennial Award for Lifetime Service to Legal Education and to the Law.
When Bell began writing about racism in the 1970’s, his work was alien–and deeply unsettling–to white readers. Unease spawned rejection: Many early readers discredited Bell as someone who “complained too much” or “couldn’t get over racism, already.” Those are very mild versions of statements I heard throughout the late 70s and 80s, when Bell’s critical race theory was new.
Today, many more people–inside and outside the academy–perceive the deep roots and subtle shadows of racism. With that understanding, we have made more progress. But we got here only because people like Bell were willing to take us by the shoulders, shake us hard, and force us to re-think our assumptions.
Bell’s fight is far from over, but his victory lies in the truth of these words uttered by his widow, Janet Dewart Bell, when she accepted the award in his honor: “Derrick always worried that his work would die with him. But on this one thing, Derrick Bell was wrong.”*
* I paraphrase (and will update when the AALS tapes are available), but I’ve got the meaning. For more on Bell, please see this official site.
A Livable Calling
January 7th, 2013 / By Deborah J. Merritt
The Presidential Program at this year’s AALS Annual Meeting featured a discussion of “Law Schools and Their Critics.” As part of that discussion, Gene Nichol offered a compelling challenge to law faculty.
Paralleling a paper published earlier this year, Nichol suggested that law schools have pushed tuition past the breaking point “without dramatically improving, or perhaps even paying close attention to, the actual learning experience of our students.” How can schools cut costs now that the crisis has arrived?
Nichol’s primary suggestion: Aim solutions at the central cost driver, tenure-track faculty salaries. To do that, Nichol suggested four mechanisms: (a) Return teaching loads to 12 credits per year. (b) Cut back overly generous policies for research leaves and sabbaticals. (c) Require faculty to teach more courses that students need for successful careers. (d) Reduce salaries to more realistic levels.
These are provocative proposals, at least for some faculty. And I offer an immediate caveat that Nichol did not have time in his short presentation to explain how he recommends implementing some of these steps. My imminent airline departure also prevented me from hearing the Q&A portion of this panel. Would Nichol trim salaries over time by cutting at corners (e.g., fewer summer research grants), freezing salaries (perhaps at the highest levels, where some of us have already attained so much), and attrition? Or would he recommend more dramatic steps? I will invite Gene to offer more details here at the Cafe if he’s willing to do so.
Meanwhile, there were three points embedded in Gene’s presentation that deserve particular mention. First, as noted above, he stressed the need to aim solutions at the problem. If high tuition is a problem, and if the high cost of tenure-track faculty lies behind that problem, then we need to address those costs. Making other reforms won’t cure the problem.
Second, Gene gently warned law schools that if we do not cure the problem of high tuition ourselves, then a combination of market and regulatory forces will solve the problem for us–perhaps in ways that are even less palatable to faculty or less supportive of legal education’s mission.
Finally, Gene suggested a silver lining in the cloud of faculty belt tightening. Most of us became teachers and scholars because it was our calling. We wanted to educate new lawyers and help the legal system gain new insights. Most of us, even 25 to 30 years ago, were delighted to learn that being a law professor was a “livable calling.” We would not have to make as many financial sacrifices as our friends who taught history, who became journalists, or who pursued careers in the arts. We could follow our passion, do what we believed in, and have an impact on the next generation, while still living comfortably.
Isn’t it possible, Gene asked, for law faculty to return to a livable calling? Do we need all of the extras that we awarded ourselves over the last few decades?
Does Cost Matter?
January 3rd, 2013 / By Deborah J. Merritt
When assembling a faculty, does cost matter? Should law schools consider cost when deciding whether to offer courses through tenure-track faculty, non-tenure-track faculty, part-time adjuncts, or other types of instructors? Or should law schools embrace the highest quality instruction, regardless of cost?
Even posing the question seems silly: Of course cost matters. Cost affects everything, even the availability of lifesaving treatment. Few of us can afford to exalt quality entirely over cost in a purchase. When we do opt for the highest quality in one part of our personal budgets (say housing), we necessarily limit options in other categories (such as entertainment). Law schools face the same constraints: few, if any, schools have the type of resources that make cost irrelevant in choosing faculty.
Law schools, in fact, show considerable price sensitivity when deciding what types of faculty to hire and what kinds of courses to teach. Schools frequently observe that adding clinics is “too expensive” because clinics cost more per student-credit-hour than large doctrinal courses do. The same has been said for legal writing courses taught by tenure-track faculty. The use of low-cost adjuncts and non-tenure track faculty has grown substantially over the last few decades. Law schools have been quite strategic in accounting for cost while building a curriculum.
Kyle McEntee, Patrick Lynch, and Derek Tokaz build on this reality in a recent paper that explores new models of legal education. McEntee, Lynch, and Tokaz (“MLT”) propose that “cost must be a factor” in determining faculty composition and that “faculty composition should be the optimal balance of cost and teaching quality, as analyzed in terms of legal education’s purposes.” The trio acknowledge that scholarship is also important in hiring faculty but, given the high cost of legal education, “it must be subservient to learning outcomes.”
Many faculty will disagree with making scholarship “subservient.” As one of them, I would add scholarship as an independent factor in the balance, saying something like “faculty composition should reflect the optimal balance among cost, teaching quality, and support for ongoing research, as analyzed in terms of legal education’s purposes.”
Some faculty (including me) would add another factor to the “optimal balance”–questions of workplace equity. When composing a faculty, I would consider both positive and negative aspects of maintaining a professorial caste system. Some professors welcome a status that allows them to teach full-time without producing scholarship; others enjoy teaching part-time while pursuing a law practice. But some of these “other status” faculty accept part-time or nontenure-track positions because they can’t find full-time jobs on the tenure track. As employers and professional role models, how far will we go in pushing workers into contingent positions–especially if the workers lack benefits from other employers?
The important point, however, is that cost should count in any decision about faculty composition. Whether the overall calculus includes two factors (as MLT suggest), four (adding scholarship and workplace equity), or some other number, cost is an essential part of the balance. As tenured faculty, we have been very nimble in accounting for cost when it benefits us. We hire adjuncts and non-tenure track faculty to teach courses that we prefer not to teach. We also resist the expansion of skills offerings on the ground that teaching them would be expensive while (we assume) doing little to further the school’s collective scholarship.
We are much less willing to account for cost when that would benefit students by lowering tuition. MLT remind us that we need to look at all faculty expenditures with cost in mind. At many law schools, the number of tenured faculty members has grown significantly over the last decade. Do we really need that many full-time, tenure-track faculty when we balance the cost against both teaching quality and other benefits these faculty may confer?
Before we discuss that question, it seems worth affirming that costs do matter, that schools already make decisions based on cost, and that both students and future clients have a very strong stake in that cost balance.
Continuing Practice Experience . . . for Professors?
January 4th, 2012 / By Deborah J. Merritt
Emily Zimmerman, an associate professor at Drexel’s Earle Mack School of Law, proposes that law professors should fill “continuing practice experience” requirements. In an SSRN paper, Zimmerman notes that “many of the people who are entrusted with preparing students for law practice are people who may not actually have practiced law, who may only have practiced law for a short amount of time . . . , or who may not have practiced law recently.” (p. 7) Zimmerman acknowledges that these professors may “do an excellent job of helping students develop some of the skills that they will need to be successful lawyers.” But is that enough? Shouldn’t law schools strive to give students the best possible education for their role as lawyers? To accomplish that, Zimmerman argues that full-time faculty should enjoy more regular connection to the world of practice.
Modeling her proposal on CLE requirements, Zimmerman suggests that professors devote 10-15 hours a year to “law practice.” To give professors more flexibility, and to allow more in-depth engagement, a “CPE” requirement might mandate 30-45 hours of practice every three years. The activities fulfilling this requirement could range from actual practice (for paying or pro bono clients) to shadowing active lawyers and participating in bar committee work. Professors without active licenses, including those without law degrees, could participate in some of the latter activities.
Turning her eye to enforcement, Zimmerman outlines a variety of ways to impose a CPE requirement: Individual schools could adopt such a requirement for their professors; the ABA could revise its standards to require or encourage CPE; and/or the AALS could include CPE in its Statement of Good Practices.
Zimmerman’s brief paper offers a thoughtful suggestion for cultivating an ongoing connection between law schools and law practice. Professors might, as she notes, resist a CPE requirement; it might also degenerate into a loophole-ridden rule or another series of talking-head seminars. But Zimmerman’s core idea holds strong appeal. If law professors ventured into practice for at least a few hours each year, they might see their teaching and scholarship through new eyes. At the very least, they would see some of the market pressures that their graduates face each day.
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