Hacking The Legal Academy

The New Republic is running a series of articles about the legal profession and law school. They’re only a few months behind the 8-ball set forth in the higher education symposium that we held here in April.

There are nine basic ideas from prominent legal writers and personalities floated in The New Republic’s mini-symposium about reforming law school. I think it might be profitable to consider those ideas on their own, before you know who suggested what, because many of the personalities have strong public personae and elicit strong opinions from people who know of them. Here are the ideas, randomized from the order in which TNR presented them:

1. Expanded corporate internships dovetailed into law school curricula.
2. Law school should be two years of academia plus one year of clinical training in the discipline of the student’s choice.
3. Return to the (probably apocryphal) 33% per-year “weeder” rate, with greater selectivity in admissions.
4. Specialized law schools for limited-practice licenses (e.g., criminal defense, family law, etc.).
5. Clinical courses during first year rather than last.
6. Distance learning (with lecturers selected for teaching quality and price to undercut brick-and-mortar law schools).
7. Discard Socratic question-and-answer techniques and combing through appellate opinions in favor of more traditional collegiate-style textbook and lecture class formats.
8. Cap the amount of money that can be lent to law students, which ought to drive tuition down.
9. Mandatory two-year gap between achieving undergraduate degree and matriculating into law school, with preference given to employment.

Disclosure: in my own column about reform of law school I touched on six ideas, all of which I thought were worthy of serious further exploration:

1. Tuition limits.
2. Distance learning.
3. Shortening the curriculum to two years.
4. Specialty licensure.
5. Teaching law as an undergraduate subject.
6. Value billing in the profession, to encourage teaching of efficiency in legal academia.

You’ll notice some overlap there. None of TNR’s contributors were among the sources I canvassed for reform ideas, although I have read quite a bit of what Paul Campos has had to say over the last several years about the real value and economic forces driving legal academics.

Of TNR’s suggestions, the only one I am immediately critical of is discarding Socratic and caselaw pedagogic methodology. These may be tedious and somewhat indirect, but the experience of going through them are good preparation for the intellectual demands of litigation, both in terms of research and comprehension, and articulation and responsiveness.

I’m not so sure about clinical work during the first year of law school, either, but I might very well be convinced that it would help. If nothing else, it could serve to weed out people who simply can’t stand the reality of working with actual people as clients.

Maybe I’m not recoiling in horror from the “weeder rule” suggestion because having just recently reviewed my transcripts from so many years ago, I see that I would have survived weeding. Or maybe I’m just cynical and soulless after two decades of practice: “Sorry, kid, you didn’t make the cut, so you wash out and you have to go get a regular job instead of pursuing your dream. Keeps rates high for the rest of us. So sayeth The Guild, so let it be done.” The question is — would this benefit the profession as a whole? I can see that it might, although I can also see that it might have no impact at all.

The loan cap is a bit confusing when I try to think both of its efficacy and the desirability of the non-academic changes it would effect — some kinds of loans are already capped. And monitoring total student loan debt would be logistically difficult for law schools especially when the drying up of loans would dry up resources used to pay the administrative costs of tracking student loan burdens. More importantly, though, a cap or limit on the amount of debt students could accumulate and remain in good standing would leave the doors to the legal academy more open to people who already had means rather than people looking to better their economic circumstances, and thus lawyering as a profession would become more the province of an already-stratified upper economic class than it already is.

With that said, I sure wish I had been given more guidance about not borrowing too much money to get my degree way back when I was mortgaging my future. I’d probably have still done it, but having a better idea of what would lay ahead before the exit video would have let me make a more informed choice — which would have probably affected my early career strategies more than anything else.

Of these, specialty licenses seem to have the biggest potential upside: a substantial public benefit in the rendering of more affordable legal services by limited-license practitioners. I don’t see any reason why general-license practitioners like myself ought to fear less expensive but less focused specialists who do nothing but divorces, for instance. This is especially true if those limited-license practitioners are taught in their own ethics classes that complex matters will still require general-license attorneys to address more than the single subject area where the practitioner holds expertise.

For better or worse, the force that can make any of these things happen is the American Bar Association’s Section on Legal Education and Admission to the Bar, by way of it altering its curriculum standards. Nearly all law schools covet the ABA’s accreditation, and most will conform their programs of education to conform to what the ABA guides them to do — and those what do not directly care about the ABA will at least take note of what their competitors are doing. (Note that the ABA is not a governmental entity.)

If the ABA were to say that the bottom third of a law school’s first year class must get cut, and not invited back to their second years, with the process repeating after the second year, and the bottom third of a law school’s second-year class must not be invited back to their third years, then functionally all of the ABA-accredited law schools would immediately adopt a one-third “weeder” rule. Half of all 1L’s would wash out and not get law degrees. That would suck to be among them. Would those people have been happy, prosperous lawyers? Would the rule allow them to seek 2L or 3L completion at a lower-tier school? Not clear — maybe they’d be free to pursue a limited license…

I also note that LSAC has a pretty handy predictor device which does the math of your LSAT and undergraduate GPA and compares your results to the admissions of every ABA-accredited law school out there, to help students make realistic decisions about where they can get admitted and, indirectly, what sorts of careers they might anticipate as a result of the degree of prestige associated with the legal education they would receive there. I approve, if only because I think people ought to make informed decisions and take calculated risks as opposed to other kinds of decisions and risks, at least with respect to something so important as the life decision to go to law school and especially if borrowing money to do it is part of that equation.

In any event, the legal profession is changing rapidly as a result of large market forces, and I don’t see it rebounding into what it used to be when I started out in the mid-90’s. Things are really different from when my mentors started out in the late 70’s and even more so from what it was in the 40’s and 50’s when most of the contemporary prevailing rules and norms were restructured. Legal academia needs to adapt and change along with the times too, and that means bracing for a lot of new ideas so as to better prepare students for the real world they’re going to have to survive in once they get their sheepskins.

So maybe not all of these are good ideas. But the worst idea possible would be not entertaining any new ideas at all.

(Featured photograph of Stanford Law School found at Wikimedia commons.)

¹ Notably absent from most lists of intended beneficiaries of reforms: law professors, whose lives and careers are apparently so space awesome that they can stand to miss out on the benefit of reforms.
 
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.