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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.
Modules: Flexibility
January 22nd, 2013 / By Deborah J. Merritt
Full-time professors tend to like traditional semester courses. Give us a classroom (preferably with a podium and a blackboard at the front); an audience of full-time students; 3-4 credit hours; fourteen weeks of class meetings; and a final exam or paper. Now that’s education!
There’s no doubt that this structure works well for some professors, students, and material. The old-fashioned semester-long course may even provide a useful anchor for education. Perhaps at the beginning of a degree program, such as the first year of law school, students should take some traditional, full-semester courses to build a foundation for more individualized work. There’s also something to be said for students developing a relationship with a few professors over a full semester of class meetings.
But I’m also confident that the traditional structure does not work well for every subject taught in law school. Some insightful instructors are not available three times a week for fourteen weeks out of the year. Some subjects benefit from intense study over a compressed period. Some material just doesn’t generate lively discussion; students can learn it more effectively on their own. In law schools, we try too hard to fit everything into the framework of a full-semester course.
A modular law school would throw off the semester shackles. Some educational experiences might last a full semester–or even a full year. The modular school, however, would assume a different timeframe for most courses. Courses would meet at a large variety of times and places, using many different schedules. Students would assemble their coursework in many more configurations than they do today.
Why would we invite that type of mayhem? I outline some of the pros and cons, focusing on schedule flexibility, below. This post is the second in a series of posts discussing the concept of a more modular law school. For the initial, introductory post in the series, see here. Future posts will discuss modular content; assessments and feedback; cost; and other issues.
Advantages of Modular Scheduling
1. We live in an unbundled, on-demand world. This is a world in which people choose playlists; they don’t listen to songs in the order dictated by an album or radio station. We watch movies and tv programs at the times we find most convenient. We search instantaneously for information when we need it. We read our favorite columnists from multiple media sources rather than subscribing to a single daily paper.
These changes have occurred because customers want them. We value individual control and choice when consuming entertainment and information. The same tastes apply to education. Like it or not, students will increasingly demand more control and choice within their legal education. They will come to law school expecting more nuanced choices than we currently offer, because that is what they are accustomed to receiving elsewhere. To senior faculty, an upper-level curriculum with few requirements may offer boundless choice. For students growing up in today’s world, four courses that each meet for fourteen weeks will increasingly feel like a strait jacket.
2. A modular schedule, as I’ll explore in future posts, may deliver better learning. Modules will require more frequent assessment than semester-long courses, and are likely to provide more feedback. Both assessment and feedback promote learning. Modules will also focus professors on the value of each course component. We’ll have to ask questions like: “Do students really benefit from this three-week portion of my fourteen-week course? Even if they do, would they learn the material better in a stand-alone module, or through a different pedagogy? How do the different parts of my course advance doctrinal learning, thinking like a lawyer, and other practice skills?” Answering questions like these can improve teaching.
I will address modular content more thoroughly in a separate post, but it’s important to note that flexible scheduling need not impair learning; if done properly, it can improve learning.
3. Modular schedules would allow us to draw upon many more instructors. Practicing lawyers rarely have fourteen weeks of quality time to commit to a course–especially when we demand that those weeks correspond exactly to our semesters. Professors in other disciplines may not be able to commit a full semester of time to teaching law students. Many law schools have already recognized this fact and have created “short courses” to accommodate practitioners or professors in other disciplines. A modular schedule would make these courses far more common; in fact, they would become the norm rather than an aberration.
4. Modules could capitalize on learning experiences that don’t fit the traditional semester. Clinics and externships often struggle with the semester framework. Some client matters take less than fourteen weeks; others take much more. Legislatures, courts, and clients operate on different calendars than we do: Their problems don’t emerge neatly in August and conclude just after Thanksgiving. A more flexible schedule would allow law schools to design experiential courses around the experiences themselves.
5. Modular schedules can help students integrate classwork with part-time jobs or externships. The latter experiences are increasingly important for students to finance their legal education or gain workplace experience. The best experiences, however, may conflict with the bulk of law school classes. A modular schedule might allow a student to work full-time in September and October, when an employer has an opening. The student might pursue a single module at night during that time, then stock up on more modules later in the academic year.
6. Similarly, modules could help students who need to attend school part-time. The cost of living accounts for a significant part of law school debt; if students could work during law school, they might graduate with less debt. Even part-time programs are relatively rigid, following semester schedules and often providing much less course choice than the full-time program. A modular schedule would allow employed students to customize their schedule for their particular job. One job might impose heavy demands in April, while another requires extra hours in December. Under a modular schedule, students could choose modules to accommodate those demands.
7. Modular classes can include new types of students. With JD applications falling, law schools are likely to create new certificate, degree, and continuing education programs. Those programs will be most efficient if schools can integrate them with JD classes. Combining different student groups can also pay off for the students: JD students and practitioners, for example, might enroll in a common module. Those students would benefit from the practitioners’ insights, as well as from networking opportunities. The practitioners, conversely, might find that full-time students are stimulating classmates and prospective employees.
Drawbacks of Modular Scheduling
1. Modular scheduling is harder than semester scheduling; it adds pieces to the academic puzzle. Will all professors want to teach Monday through Wednesday during September and April? Will all practitioners prefer to teach on Tuesday evenings in October? Those are nightmares that, as a former associate dean, I can understand. But airlines and other businesses engage in much more complicated scheduling than we do at universities; I suspect we can produce a modular schedule. We may even find that modular scheduling creates fewer conflicts than semester scheduling does. Lots of professors like to teach at 11 a.m. M-W, but they may prefer different months of the year. As we spread the schedule over more hours, days, and months–and engage more different types of instructors–the conflicts may diminish.
2. Full-time, tenured faculty won’t like it. We are all creatures of habit, and full-time tenured faculty rarely have to alter their workplace habits. Changing course schedules, teaching times, and other expectations may be wildly unpopular. Forced change, of course, can be a good thing: In addition to accommodating student demand (or satisfying other institutional objectives), it may encourage faculty to re-examine silent assumptions underlying their courses and pedagogies. But full-time, tenured faculty are unlikely to applaud significant changes in the academic schedule.
3. Some modules won’t generate enough student interest. To accommodate both scheduling and subject preferences, schools may have to offer a large number of modules. Some of these modules will attract only a few students, requiring a decision about whether to cancel the module. Cancellation imposes costs on the students who anticipated that module; it can also impose institutional costs if the school committed to pay the instructor (or to credit a full-time professor for that module). Even if the instructor agrees to teach a different module or at a different time, time is wasted making those arrangements.
4. Expectations may overload students. If modules start at different times and extend for varying periods, instructors won’t know the demands imposed in other modules. What happens if four different modules schedule exams on the same day or during the same week? This happens with semester courses, and both students and professors complain about it. Expectation clashes may be more frequent with modular scheduling–and more complicated because students will enroll in different patterns of modules.
5. Universities may have to adjust their tuition schedules. Some universities charge by the course, others charge by the credit. Modules may not fit comfortably within either framework. If other parts of the university offer traditional semester courses, it may be particularly difficult for law schools to negotiate an appropriate price for their modules.
There is much more, both positive and negative, to say about modules. Stay tuned as I continue to explore this educational framework.
Modules: An Introduction
January 21st, 2013 / By Deborah J. Merritt
A “modular” education is one in which (1) the institution delivers education in discrete courses; (2) those courses are independent of one another, although some advanced courses may carry prerequisites; (3) teachers assess students at the end of every course; (4) students have significant choice in electing courses; (5) the student earns a degree by passing a specified number of courses, sometimes with particular distribution and other requirements; and (6) a student often may apply credits from one institution toward the degree awarded by another institution.
Sound familiar? It should. Modular education has long been the norm at U.S. universities, including law schools. Universities in other countries, including the United Kingdom, embraced modular education much more recently–with significant culture shock and gnashing of teeth. [For a discussion of that transition, see the interesting article by David Billing, Review of Modular Implementation in a University, at 50 Higher Education Quarterly 1 (1996).]
So what’s the big deal about moving law schools to a more modular system? In a recent paper, Kyle McEntee, Patrick Lynch, and Derek Tokaz advocate a new model of legal education called the “Modular Law School.” Their proposal would make law school more modular by introducing greater flexibility in the length and scheduling of coursework. Modules could last a week, a month, or a semester–although most would last no more than seven weeks. Similarly, modules could meet one hour a week or ten hours a week; schedules would vary to accommodate the nature of the material, the pedagogy, and the instructor’s availability.
Many law schools have already moved in a modular direction. They offer “short courses” ranging from a week to a half-semester; they also schedule courses in different formats. The Modular Law School (“MLS”) builds on these approaches to create a more fully modular system. What are the pros and cons of an MLS?
There is a lot to say about the costs and benefits of a more modular education; so much, in fact, that I’ve decided to create a series of posts on this issue. In upcoming posts, I’ll consider these aspects of a more modular law school:
* Assessments and Feedback
* Curricular Content
* Delivery Methods
* Costs
* Customization
* Coherence
* Experiential Education
* Continuous Improvement
If you’re interested in other topics related to modular education, please let me know. My discussion is modular, so I can easily add to it!
Business Education in Law School
January 18th, 2013 / By Deborah J. Merritt
Robert Rhee, the Marbury Research Professor of Law at the University of Maryland’s law school, is well qualified to write about the relationship of legal and business education. Rhee holds both a JD and an MBA; he has worked as a government lawyer, a law firm partner, and an investment banker; he co-directs Maryland’s Business Law Program; and he authored a book (Essential Concepts of Business for Lawyers) that introduces law students to key business principles.
Rhee’s most recent paper on legal education proposes creation of a “JD/MBL” curriculum. The “MBL” stands for “Masters of Business Law” but, as Rhee quickly explains, this is simply an “idea tag.” The name reflects a focused, interdisciplinary group of business courses pursued as part of the JD program. Candidates completing this work might receive a certificate, but they would not necessarily qualify for a separate master’s degree. Rhee uses the “MBL” name as a handy reference for the program he proposes.
The Program
Rhee’s proposed “MBL” includes (1) most of the traditional first-year courses; (2) Administrative Law, Evidence, and Professional Responsibility; (3) a full range of business-related law courses (Corporations; Partnerships; Income Tax; Securities Regulation; Corporate Finance Law; Partnership or Corporate Tax; Intellectual Property); (4) a set of business courses taught either at the business school or law school (Math & Excel Camp; Management; Financial Accounting; Corporate Finance; Business Communication; Litigation & Management; Managerial Economics; Early Stage Business Advising: Mature Stage Business Advising; Entrepreneurship; Leadership & Teamwork; Strategy); and (5) a few electives.
The curriculum is intense. In fact, my first response was “wow, no wonder business people are disappointed with their lawyers. There’s a lot we don’t know.” I still don’t know enough about practicing or teaching business law to comment on the specifics of Rhee’s proposed curriculum. But as Rhee explores his proposal, he offers a number of other insights that legal educators may find interesting. I summarize those, as well as some of my own reactions, below. Law schools considering the integration of law and business perspectives may find Rhee’s insights useful even if his specific proposal fails to serve their needs.
Integrating Business and Law: Insights
1. Rhee harpoons the notion that a standard JD prepares graduates for careers as corporate executives, investment bankers, management consultants, entrepreneurs, or other “business” people. Some JDs transition into those positions, Rhee acknowledges, but those outcomes stem from very adaptive lawyers who capitalize on unusual circumstances. If law school really prepared students for careers in business, why wouldn’t corporations, investment banks, and management consulting firms regularly recruit at law schools for their business positions? And why wouldn’t more BigLaw associates move into business (rather than in-house legal) positions when winnowed from their firms?
These points sound persuasive to me. A standard law degree might be useful for a student who planned to return to his family business–although, even there, it seems to provide more law and less business training than optimal. But why would a generalist law degree prepare students particularly to work in corporate management or investment banking positions? Those professionals make complex decisions based on bodies of knowledge as specialized as (but different from) the material we teach in law school.
If you have any doubts about Rhee’s argument on this score, take a look at his business-proficiency quiz on pp. 11-12. Answering these questions correctly wouldn’t qualify a student to work as an investment banker or management consultant; a good score would merely make a new lawyer conversant with business terms. Yet a large proportion of law graduates, I suspect, would fail even this basic quiz. Rhee’s rejection of law as a general-purpose degree that prepares graduates for today’s business world is an informed, and useful, counterpoint to generous claims about the versatility of the JD.
2. Rhee, notably, also rejects the utility of a joint JD/MBA for most graduates. The joint degree, he argues, offers too much business for a student who will practice law and too much law for one who will pursue business. A joint degree program can preserve options for a student who isn’t sure which path she will pursue, but it is an expensive option-saver. It is more efficient to develop programs that deliver useful business concepts to future business lawyers, without requiring those students to obtain a full MBA.
Rhee, by the way, notes that he did not obtain his two degrees in a joint program. He first earned his JD, clerked for a federal appellate judge, and worked in the Justice Department Honors Program. He left government for an MBA program precisely because he could not transition into business with a JD alone. Having changed his career goals, he needed a different degree.
3. The most effective way to train business lawyers, Rhee suggests, is through a three-year JD program that includes a heavy dose of business courses. That is his “MBL” model outlined above. This “Goldilocks” model aims to give business lawyers just the amount of business education that they need to gain an advantage in the workplace.
4. Rhee’s article is refreshingly candid in acknowledging that a specialized business program–no matter how artfully designed–cannot trump all other hiring considerations. He acknowledges that his proposal is not the silver bullet that will guarantee business law employment for all graduates. A BigLaw firm’s corporate department probably will hire a Harvard Law graduate over a Maryland one, even if the latter student has more focused business coursework. The proposal, Rhee suggests, will improve education, and may improve initial job placement at the margins. The student who completes an MBL-like program may win an entry-level job away from a peer at a similarly ranked school without such a program; an MBL school should not expect (or promise) more.
5. Rhee notes, however, that MBL courses may prepare a student to outperform peers after securing that first job. A JD with focused business preparation may impress clients and bosses, and may find a more secure workplace niche. This advantage could be useful in today’s workplace, where employers more frequently use apprentices, interns, and fellows; the MBL graduate may stand out in that type of position–as well as in more traditional associate jobs that rely upon the survival of the fittest.
Equally important, the MBL will give the graduate more ability to jump to business positions. The standard JD, in Rhee’s opinion, does not confer the type of business versatility that law schools claim. But a JD that incorporates a significant portion of the MBA curriculum may serve that purpose.
These points strike me as important in evaluating curricular changes at law schools. The job market will be volatile for the foreseeable future; volatility may be a constant for our future graduates. Rather than claim that the conventional JD is versatile, schools could explore how they can make their degree more versatile. No degree can be all things to all people in today’s world. But a JD with a business focus might give graduates options that neither the JD nor MBA alone can deliver.
6. Even for schools with no interest in developing an MBL-like program, Rhee’s review of the potential courses in that program is quite informative. As Rhee points out, most law students have little business, management, or financial competence. Those skills apply to many areas of law practice, not just to serving corporate clients. Almost any lawyer today, furthermore, will benefit from basic competence in these areas just to manage her own practice–or to understand how her organization is managed. Educational reformers of all types may find some of Rhee’s proposed courses useful.
Final Thoughts
There is more in Rhee’s article than the points I’ve outlined here. He discusses, for example, different ways of financing MBL courses, as well as some of the “sacred JD cows” that might have to be sacrificed for students taking part in his program. On the sacred cow side, I’ll note that although I currently teach Evidence (which Rhee would keep for his MBL students) rather than Constitutional Law (which he jettisons), I’m troubled by the idea of students earning a law degree with no knowledge of Constitutional Law. I understand that some schools overdo the Marbury stuff for future business lawyers, but surely we could find 2 credits for some basic constitutional principles?
On the grander scale, Rhee’s paper is useful for law school innovators because of the approach it adopts. Rhee takes a hard look at what the current JD curriculum delivers and what it doesn’t offer. He draws upon his experiences in law practice and business to formulate a specific proposal about how schools might educate students more effectively for careers that span business and law. He’s not afraid to get concrete, even about the elimination of Constitutional Law. And he doesn’t over promise what an MBL track could achieve.
I’d like to see similar proposals for other areas of law practice. What would a JD with a labor/employment, intellectual property, or other focus look like?
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.
Inside-Out as Law School Pedagogy
January 3rd, 2013 / By Deborah J. Merritt
Giovanna Shay, a professor at Western New England School of Law transported her law school seminar to a nearby correctional center. Shay’s transplanted seminar on “Gender and Criminal Law” enrolled both law students and prisoners. Both groups studied the same material, wrote papers, and interacted at a class that met weekly inside the prison. Shay based her model on the Inside-Out Prison Exchange Program, which sponsors similar classes for undergraduates and prisoners. Shay’s paper describes the profound impact of this class on her law students, as well as on her overall teaching style.
Skeptical readers may view Shay’s course as a luxury: If we need to pare down the cost of law school and prepare students more directly for practice, why we would let classes wander off into prisons? But Shay’s paper intrigues me for three reasons. First, even as we tailor legal education more closely to law practice, we should still educate professionals who are thoughtful about the role of law in society. The law exerts its greatest force when incarcerating individuals; understanding the impact of that power is useful for everyone who will serve the legal system.
Second, Shay’s technique fits with the concept of “unbottling” legal education. To make law schools more adaptive, we need to think about educating students in many ways, times, and places. Shay’s inside-out may not work for your school, but the concept may prompt other novel ideas. What about a school-sponsored CLE course that takes practicing lawyers into a prison for a seminar like this? That would be less convenient than a talking-head video broadcast, but much more interesting and provocative.
Finally, Shay’s experiment prompts me to think about other ways in which law students can learn alongside other people—raising the educational value for both groups. What about a criminal procedure course that enrolls both law students and aspiring police officers? How about a copyright course that includes both students and writers? Or a small business course for students and entrepreneurs? Those initiatives might raise educational value while also developing new revenue sources–taking some of the pressure off JD tuition.
This is a short essay about an unusual initiative, but it is one that can prompt many outside-the-box thoughts.
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.
Incubators
January 3rd, 2013 / By Deborah J. Merritt
Several years ago, my city’s bar association started an incubator program for new lawyers. The program is small, but draws positive reviews from a few graduates I know. More recently, I read that IIT Chicago-Kent’s College of Law had started an incubator for its alumni. This article in the Illinois Bar Journal offers a good opportunity to think about incubators–as well as about the relative merits of incubators housed at law schools or in the community.
The Chicago-Kent incubator currently hosts five new lawyers, all of whom graduated from the school. The lawyers receive free office space, along with access to copiers, the school’s law library, and Westlaw/Lexis subscriptions. Clinic faculty mentor the new lawyers and can also refer cases to them. In return, the incubating lawyers donate up to ten hours a week helping the clinic with its cases. An incubator lawyer, for example, might handle a status call that the clinic students are unavailable to cover. The new lawyers also pay for their own malpractice insurance.
Incubators, whether housed in a law school or practice community, have several attractions:
(1) They provide a safety net for new lawyers who want to establish a solo or small practice. Law faculty or practitioners can help the new lawyers handle unfamiliar challenges. Some incubators also develop regular programming to instruct participants in ethical issues, office management, marketing, and other matters.
(2) The incubator reduces overhead costs for fledgling lawyers. Universities and bar associations often can provide heat, light, libraries, and other amenities at lower cost than the lawyers would find on the market. In at least some cases, the incubator provides these services free–drawing upon excess capacity or altruistic motives.
(3) By training lawyers for effective small-office practice, the incubators may help create competent, reasonably priced providers for low- and mid-income clients. Many incubators complement this public purpose by requiring participants to provide some pro bono service during their time in the incubator.
(4) Lawyers won’t make a lot of money while practicing in an incubator, but they’ll make more than they would as volunteer interns. Incubators give new lawyers a chance to develop some practice skills–which they may be able to market to larger firms, government, or corporations–without forfeiting all income.
But, of course, there are downsides:
(1) Incubators will do little to expand the number of clients who can pay for small-office legal services. Incubators can train lawyers, but can they produce enough paying clients to sustain the lawyer in the long run? Will the incubator graduates simply compete with other solo practitioners for a dwindling number of paying clients?
(2) By the same token, incubators won’t solve the problem of unmet legal needs–unless they help lawyers develop ways to deliver legal services at lower cost. The American public doesn’t suffer from a lack of lawyers; it suffers from a lack of lawyers who can afford to deliver services at rates the public is willing to pay.
(3) If solo practice won’t sustain incubator graduates, they may seek work with other employers. But will larger firms, government agencies, and corporations value the work performed in incubators? Employers seem to give less weight to clinical experience than their demand for “hands on” training would suggest. Will they adopt the same attitude toward incubator experience? Will the incubator work prove worthwhile only for jobs in the same legal field?
What about the differences between law school incubators and practice-based ones? A law school incubator can strengthen bonds among current students, alumni, and faculty. If a clinic has strong community connections, it may also be able to feed the incubator clients, benefiting both those clients and the new lawyers. Clinical law faculty are accustomed to mentoring new lawyers; working with recent graduates builds naturally on work with current students. For the school, there is also the attraction of benefiting its own alumni–and enhancing their employment outcomes.
On the other hand, some law school mentors may lack knowledge about issues that matter to new solo practitioners. Many clinics provide free legal services and benefit from university-provided facilities. Do faculty in these clinics have sufficient experience with budgeting for a small office practice, marketing their services, developing client bases, setting fees, and collecting payments from clients? On some of these issues, and depending upon the school, new lawyers might receive better mentoring from bar-hosted incubators. A bar-based incubator can also create important bonds within the legal community; larger mentoring relationships might grow out of the incubator.
The biggest question for all incubator programs may be: Can schools or bar associations take these programs to scale, so that they benefit more new lawyers? If not, what lessons can incubators offer other organizations that mentor new lawyers? Can the incubators teach law schools or employers how to better educate lawyers?
Law School Disruption
December 28th, 2012 / By Deborah J. Merritt
Campbell explores two disruptive forces undermining conventional legal education: new educational models (particularly online learning) and the expanding provision of legal services by non-lawyers. On the first, he asks: “What do universities sell for their tuition dollars in a world where world-class instruction is free?” On the second he notes: “Amazon has not succeeded in monopolizing book sales, but it took enough away so that Borders was no longer a profitable business.”
Law professors often scoff at these predictions of disruptive change, but the forces that Campbell describes are real: It is time to pay attention. Campbell offers a useful introduction to the major disruptions threatening legal education. He also offers a short description of his home institution, the innovative Peking University School of Transnational Law. Expect to hear more about a law school that graduates bilingual (English/Mandarin) lawyers ready to counsel clients on both U.S. and Chinese law.
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