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Tuesday, January 17, 2012

McGinnis, Mangas, and Rodriguez on "Killing the Law Schools"

In the Wall Street Journal, John McGinnis and Russell Mangas suggest "killing" (not really) the law schools as a way to increase the number of attorneys and lower legal fees.  At his new "Word on the Streeterville" blog, now-Dean Dan Rodriguez of Northwestern responds

. . . What would this reform do to legal education generally?  Not much good, from my perspective.  The legal profession is becoming considerably more, rather than less, complex over time.  Appeals to, as they write, the “ancient common law” is rather quaint.  There is, to be sure, a core and a canon which every well-trained lawyer should have exposure to, and two years may do the trick.  But there is much beyond this core, as lawyers grappling with a technologically sophisticated, globally interdependent, socially and economically diverse legal and business world well appreciate.  Lawyers tell us in the academy that we are not doing enough to get our students ready to practice.  They insist on greater skills training, more clinical experience, more integrated law/business curricula, and opportunities within the post-graduate structure to gain on-the-job practical experience through internships and externships.  And what McMangas has on offer is tossing that aside to be replaced with two years worth of presumably in-class exposure to the “ancient common law” and a few additional goodies.  Leave aside the self-interest of the professiorate.  That’s not what lawyers tell us that they need. . . .

Rodriguez has also posted a detailed reply by McGinnis and Mangas.  Thoughts?  Certainly, there are loads of smart undergraduates who could, without the assistance of an increasingly expensive law-school education, pass a bar exam after an undergraduate law course and competently provide a range -- though not the full range -- of legal services.  And, since I'm inclined to think that more than a few of the standards and regulations that are imposed (by the A.B.A. and the A.A.L.S.) on law schools as a condition of producing bar-eligible lawyers are homogenizing, heavy handed, simplistic, misguided, and/or products of special-interest lobbying, rather than careful responses to the demonstrated needs of students, clients, and the profession, I see some appeal to the McGinnis / Mangas call for a "more flowers blooming" market.  On the other hand . . . 

What do you think? 

Posted by Rick Garnett on January 17, 2012 at 06:31 PM in Rick Garnett | Permalink

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Comments

My initial thoughts are that the plan would work to drive up the cost of legal fees, at least in the aggregate, and wreck havoc on the judicial system in terms of administrative efficiency. If Lawyer A and Lawyer B sit down to settle a claim is the likelihood of avoiding litigation better or worse when their theoretical / practical understanding of the law, etc. has parity (e.g., each has a similar perception of the claim's value)?

From a judicial standpoint, have you ever seen a pro se complaint/petition/brief???

Posted by: Mike Edelman | Jan 17, 2012 7:02:35 PM

To the last point, I'd suggest that the individuals filing pro se briefs and those who would be taking the bar right out of undergraduate school are completely distinct populations.

I think it's undeniable that there are areas of law where clients don't need the protection that current regulations and restrictions provide. It's partitioning law and figuring out what those areas are that's the problem.

Posted by: Andrew MacKie-Mason | Jan 17, 2012 7:45:35 PM

Having saved as much as $150,000 in tuition and three years of life the possessor of an undergraduate LLB could work for as many as three years as a lawyer-in-training at a reduced salary and still come out well ahead financially.

It is hard to see how even the best in class simulations or clinics could beat actual experience in terms of practical skills. With those types of courses not necessary the LLB program could devote substantial credits to both doctrinal and "law and" classes. The first two years of undergraduate education could continue to be devoted to the breath portion of the liberal arts curriculum. All that would be lost would be the ability to "major" in something other than law and perhaps some upper level electives.

The law faculty would be folded in to the falcuty of Arts and Sciences where it belongs. You'd probably need more LLD programs though, as the University isn't going to be happy with tenured professors without Phd equivalent degrees.

Posted by: Brad | Jan 17, 2012 10:32:47 PM

Mike Edelman--

Your prediction seems unlikely to me given that law is an undergraduate degree in many countries, and yet my sense is that folks in those countries generally have significantly lower legal fees than do those in the U.S. Part of the problem is that valuing a legal claim generally is not so much a question of legal theory as it is experience; you're estimating the likely outcomes based on the judges, the jury pool, likely expenses, etc., not analyzing rich questions of jurisprudence. And that assumes that there are major advantages to studying law post-graduate, which seems uncertain to me.

Posted by: Orin Kerr | Jan 17, 2012 11:47:41 PM

Once upon a time, not too long ago, you could "read" for the law in most states. In New York, if I recall correctly, it took seven years of clerking at a law firm to qualify to take the bar exam without a law degree. My memory might be faulty, but I believe the first woman partner at the Cravath firm read for the law. Is there any reason why we couldn't add this back to the mix as an alternative route to the bar?

As for the undergraduate/bar exam route, my firm belief has long been that you could take your average bright Princeton grad, put him through BAR/BRI, and he'd have the same odds of passing the bar as he would after three years of law school. That may say more about the idiocy of the bar exam than anything else. In any event, I think de-regulation of bar admission is a fine idea, perhaps accompanied by tighter regulation of certain areas of practice where incompetence imposes costs on the public, e.g., trial practice.

Posted by: Douglas | Jan 18, 2012 4:04:53 AM

What might be the impact of "Killing the Law Schools" on real estate office rental markets and other support, overhead, expenses involved with the practice of law?

Posted by: Shag from Brookline | Jan 18, 2012 7:05:49 AM

Orin Kerr -

I appreciate your comment, but isn't comparing the legal system we have in the United States to that of other countries a bit disingenuous? I will admit, I don't know much about international law, but I was under the impression that our legal system was significantly different than that of our European counterparts - especially, in areas of cost and how those costs are allocated.

Moreover, who are the parties paying high legal fees in the United States? Would those parties be willing to pay less for a less skilled lawyer? I'm not so sure.

It seems like we would end up in a prisoner's dilemma - BigCorp X will not retain a less skilled lawyer unless it knows for sure that BigCorp Y will. It might be better for everyone if both cooperated, but neither is willing to risk it. After all, aren't there are plenty of unemployed lawyers right now - many with a few years of firm experience in addition to their JD? Why is there currently no market for these folks?

Without additional systemic change, deregulating the bar seems like an overly simplistic solution, perhaps better suited for cost shifting than cost eliminating - that is, if it is a good idea.

Posted by: Mike Edelman | Jan 18, 2012 9:17:44 AM

I think it makes a lot of sense to begin by considering a 2 + 2 degree: two years of concentration in undergrad plus two years in law school. Those two undergraduate years could be a constellation of law-related interdisciplinary courses: the philosophy, economics, sociology, psychology, political science, and history courses that would lead to more sophisticated interdisciplinary work in law school. And I would keep 1L fairly traditional, but just shrink it a bit so that you could get into some more advanced work in the spring semester. In a sense, this would be more like med school. If you decide to go to med school but have not had the science and math in undergrad, you can take a one-year pre-med course (like this Bryn Mawr program: http://www.brynmawr.edu/postbac/). Same could be true of law school; that way, profs could be assured that law students know some basics in the humanities or social science methodologies that would enable them to do interdisciplinary work in the graduate part of law school.

Posted by: Matt Bodie | Jan 18, 2012 10:23:01 AM

Matt Bodie's 2+2 reminds me that when I finished law school in 1954, the only law school in the Boston area that required an undergraduate degree was Harvardl, others requiring 2 years of college sometimes described as pre-legal studies, but followed by 3 years of law school. The second semester of the third year of law school, in my experience, involved electives and an opportunity to take a bar review course for the July exam. (The tuition in my third year was $400.00.)

Posted by: Shag from Brookline | Jan 18, 2012 11:53:37 AM

One thing to mention that hasn't been is that in the UK, a lot of people are eschewing a LLB in lieu of a conversion degree (basically, someone with a non-law degree can take a one year course and then "train" as a solicitor for two years). I tried to google the exact breakdown to no avail, but in my experience, about half of the UK solicitors became qualified through the conversion process.

Posted by: Anon, good nurse! | Jan 18, 2012 12:10:04 PM

Mike,

The word "disengenuous" means "not candid or sincere, typically by pretending that one knows less about something than one really does." No, I was not being disengenuous.

In any event, I don't understand why you see this as a prisoner's dilemma problem. In your view, is hiring a bad lawyer a form of "cooperation"? I don't think I follow.

Posted by: Orin Kerr | Jan 18, 2012 1:56:41 PM

McGinnis and Mangas make an interesting point - in fact I believe my uncle, per the GI Bill Post World War II, took just such a course - 2 years of undergraduate and 2 years of law, and he was a very successful lawyer.

One way or another, law "schooling" needs to change. I advocate at the very minimum that present day law schools need to offer executive training in skills besides law to make their graduates competitive and recession proof in today's economy.

Like it or not, the demand for traditional law firm services is shrinking in corporate America. Risk management and other consulting services traditionally handled by lawyers are increasingly being assigned to non-legal professionals who have expertise in a particulary industry.

My solution, whether a law student does two years of law study as an undergraduate or three years in a traditional school is that the "law school" must offer executive training programs in other disciplines besides law, such as executive sales and business development, leadership, corporate finance, professional speaking, and other business courses.

Only through such a multidisciplined training approach will lawyers have the skills to bullet proof themselves in a recesson or from the up and out approach of traditional law partnership admission. You can see preview my book on this subject at

www.avoidthelawschooltrap.com

Posted by: Paula A. Argento | Jan 21, 2012 4:42:18 PM

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