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.

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