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Tuesday, June 19, 2012

"Failing Law Schools": Two Quick Thoughts

Like many others, I just finished reading Brian Tamanaha's Failing Law Schools.  I'm not sure I "enjoyed" it -- it's sobering, indicting, discomfiting stuff -- but I respect and admire it, and know that I'll be thinking a lot about it, and recommending it to others.  Two quick thoughts:

First, a point that Brian emphasizes several times is that we are seeing, at the same time, (i) a difficult job-market for law-school graduates, most of whom are carrying large debt-loads, which are made possible to a large extent by the availability of a lot of student-loan funding, and (ii) a situation where poor people regularly lack legal services in contexts where those services, most of us would think, are needed. 

This point raised, for me, the question whether, as a policy matter, we (that is, the larger community, not law professors) would be better off if a substantial portion of the public funds that are currently (as Brian tells it) being funneled, via loan-receiving students, from taxpayers to law schools were instead re-tasked to subsidizing legal services for the poor (that is, if the money was moved from the production of lawyers to the delivery of legal services)?  I realize, of course, that this is not in principle an either-or, that there are political barriers to increasing funding for such services, etc.  "Access" is in play, it seems to me, under both options, i.e., "access" for would-be law students, or "access" for would-be low-income clients), but after reading Brian's book, I was not sure that the former is actually being very well served by current lending policies (because tuition simply goes up to capture the available loan-funding and because the schools don't have enough incentive to worry about whether students will be able to pay back the debts they are incurring). 

Second, it appears that a few -- but only a few -- law schools really can and could do what they want -- or, what they think is really right -- without worrying about U.S. News, the ABA, or the AALS will "say."  (If U.S. News decided to rank Harvard at #15, I assume it would hurt U.S. News more than Harvard.)  So, after reading Failing Law Schools, what big steps could, or should, the faculty and administration at these schools do?  What could they do to lead, that might have ripple / cascade effects?  Or, do even these schools have to simply wait, either for the cliff or for the regulators and rankers to demand changes?

Posted by Rick Garnett on June 19, 2012 at 01:32 PM in Rick Garnett | Permalink


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As to point # 1: Could they be linked? Could student loans carry with them some sort of obligation to work a job serving low-income and needy clients for some period of time (which, btw and not to beat a dead horse, sounds a lot like residency)? It would be very expensive, to be sure. And it creates a caste system--those who can afford to pay their own way don't have the same obligation. But is that one answer to the either-or?

Posted by: Howard Wasserman | Jun 19, 2012 3:04:38 PM

Howard -- perhaps, but why not cut out the "middleman" (and thereby, perhaps, help to fight against the tuition-increasing -- and access-limiting -- effects of the loans)?

Posted by: Rick Garnett | Jun 19, 2012 3:08:05 PM

Perhaps a reason to keep in the middleman is to ensure that the poor get legal services worth receiving.

Let's play out this scenario: in one corner, you'll have Harvard, Yale, etc. grads defending wealthy/powerful corporations. In the other, you'll have...initially, the un- and underemployed laywers of today, and in the future, entirely untrained people? Sounds like a recipe for more, not less, stratification.

Howard Wasserman's solution, along with sensible limits on loans/pay at law schools, sounds like a much better one.

Posted by: Middleman | Jun 19, 2012 5:07:03 PM

Middleman - I don't (yet) see why the scenario you describe - which, we agree, is a bad one - would follow. Can you fill in for me the steps? Thx - R

Posted by: Rick Garnett | Jun 19, 2012 5:13:10 PM


We still have to train and produce a flow of new lawyers. We can't do that if student loans are not available to pay for school. We can question and debate whether there are "too many lawyers," but the acknowledged dearth of legal services suggests the answer is there aren't. So we still need schools to train new lawyers (perhaps in fewer numbers, but still). And without student loans,we get stratification in that the only new lawyers are those with the money to pay for it themselves?

Posted by: Howard Wasserman | Jun 19, 2012 5:47:07 PM

Training lawyers need not require schools at all. The apprentice system worked for around 600 years prior to 1900. It still works for several professions no less intrinsically difficult than law.

That might well leave two tiers with respect to prestige, but assuming equal raw material I'd take someone with six years of apprentice work before sitting for the bar over someone with a JD from Harvard before sitting for the bar, every day of the week.

Posted by: Brad | Jun 19, 2012 6:27:31 PM

Really? No matter what their background or the background of their mentor, or what work they had been doing? Take them to do what? Do you think firms who pay top dollar would?

Posted by: CHS | Jun 19, 2012 7:37:07 PM

There are many interrelated problems here. Too many people do not have the lawyers they need either because lawyers do not want to handle those matters or cannot afford to, and fixing the ruinous student loan regime has the potential to address only the latter. As for the job picture overall, we need (a) a significant shift in the market that opens more jobs for lawyers at reasonable income levels; (b) the creation of more alternative careers in which a law degree is useful, again coupled with reasonable income opportunity; or (c) to produce fewer lawyers. Or (d), more than one of the above. Law schools may be part of the problem here, but they are only a part.

Posted by: Doug Richmond | Jun 19, 2012 8:02:11 PM

If the firm itself had done the training - certainly. Why would a firm want an unknown quantity rather than someone who they had six years experience with and whose skills were shaped by the need of the firm itself?

Although our current system makes it rare for the same 'raw material' to be available in a paralegal and new associate, I've nonetheless known many attorneys who trust the former far more than they trust the later.

Certainly there would be variations in quality depending on the area studied, the mentor and so on, but all those variations already exist in attorneys with 3-5 experience for the very same reasons.

Posted by: Brad | Jun 19, 2012 8:05:10 PM

We will go back to a system of strict apprenticeship, no law school, when all lawyers start accepting chickens and produce for fees again, which as I think of it may be sooner than later. Yes, law firms are chomping at the bit to train 22 year old kids out of college to be lawyers. "Here Johnny and Sue, this is a tort..." There can be some mix of law school/ externship/ apprenticeship, whatever you want to call it. I cannot see the top firms going for something like this. To talk about what people did pre-1900, and say it should fit in today's world without reference to how the world has changed is not good enough. It's as if history does not matter. We forget why we moved away from apprenticeship to begin with.

Posted by: CHS | Jun 19, 2012 11:20:50 PM

Re: Legal apprenticeship system

There was no uniformity within the system even within a local legal community. Before praising the past, perhaps we need a better understanding of the system to determine whether it can work today. In the past, an affidavit of a lawyer supporting an apprentice's admission, e.g., that the latter trained for 3 years in the former's office, would suffice for admission, with no apparent testing by the admitting court of the apprentice.

Imagine a large law firm with current day legal economics keeping records of training of their apprentices. In the old days, the apprentice made sure the lamps were filled with kerosene, ink wells were filled, documents were copied by hand, other scrunge work, etc. And the apprentice might have even paid the lawyer for training. Before going back to the apprentice system, more information is needed. (John Adams was "trained" by a prominent lawyer but according to Adams there was little training involved on the part of the lawyer.)

Posted by: Shag from Brookline | Jun 20, 2012 6:27:31 AM

Howard, I'm sorry for being unclear. I did not (mean to) suggest that we embrace a situation where we are unable to train lawyers because there are no loans. I was suggesting that, all things considered, it might be better if the easily available loans from government that are currently helping to drive up tuition (which results in higher debt loads for students) were re-tasked to providing legal services for the poor (which would both create jobs for lawyers and provide services to the poor who need it). This would, again, the suggestion is, help keep tuition and therefore debt loads down, and I am assuming that (smarter?)loans would be available from private lenders, and from the schools themselves.

Posted by: Rick Garnett | Jun 20, 2012 7:32:26 AM

"Let's play out this scenario: in one corner, you'll have Harvard, Yale, etc. grads defending wealthy/powerful corporations. In the other, you'll have...initially, the un- and underemployed laywers of today, and in the future, entirely untrained people? Sounds like a recipe for more, not less, stratification."

I'm not sure how this is relevant. Those Harvard and Yale lawyers already do pro bono working at their big evil corporate firms. The impact litigation and high policy positions are already filled with the graduates of top schools (ask anyone what kind of credentials you need to work for the ACLU or DOJ these days). There is very little difference in either training or "legal IQ" between someone who went to Harvard and someone who went to, say, GW or another first-tier school who's graduates are having trouble finding jobs. Either could deliver competent direct services to lower or middle income clients with enough training and an organization with the money to hire them.

What you suggest would stick another burden on the backs of heavily indebted students, with not a lot of benefit for the public. Instead, if you really care about the poor, why don't you reduce tuition at 90% of American law schools to around 10K per year public and 20K per year private? That way recent law grads will be able to go work for low wages or start their own firms directly serving middle and lower income clients.

Posted by: BoredJD | Jun 20, 2012 8:36:52 AM

On the apprenticeship thing--though I know it's not terribly relevant to Rick's actual post--it's perhaps worth noting that some states (VT for example) still allow folks to "read for the bar" as an apprentice. In fact, one of the sitting Justices on the VT Supreme Court didn't go to law school. Not to say we can go back there on a large scale...just of possible interest...

Posted by: Ian Bartrum | Jun 20, 2012 1:49:01 PM

On apprenticeships:

The 19th century apprenticeship model is certainly viable if updated for these more complicated times, and if there is adequate bar or state oversight over the process.

The first half-year could be devoted to doctrinal instruction in core subjects. However, this instruction could be provided by commercial bar review courses, which do a better job of teaching the law in nine weeks than law professors do in three years, and at a fraction of the cost.

The next two years could consist of a structured series of clinics and externships, in which students would learn how to try a case, write an appeal, run an office, and represent clients in a few practice areas chosen by each student. These clinics and apprenticeships would, of course, be run by successful practitioners, not by professors who wouldn't know a courtroom from a faculty lounge!

At every stage of the process, a student would have to pass a test or provide a supervisor's certification of competency.

This model of legal education would be far less expensive because it would replace professors with adjunct practitioners. It would eliminate the need for law school buildings. It would provide students with basic competencies and local contacts, so that they could at least earn some money upon bar passage in the practice of law. And it would spare grads who are unsuccessful in the practice of law the horrors of a lifetime of debt servitude.

Posted by: dyb | Jun 20, 2012 7:28:35 PM

A lot of oversimplification in the article. One of the biggest reasons for tuition increases at law schools at public universities is that the amount of state funding. or the lack of it. State law school I went to in the late 1980's state covered 75% of law schools costs, tuition, about 25%. Now the law school gets no funding from the state. This translates into a 300% increase in tuition, even if the school had kept its operating costs fixed for the last 25 years.

The article makes no comparison of tuition increases in law schools versus other advanced degree programs. Is it higher or lower than for other programs.

Also the article does not compare employment rates now versus in the past. Back when I graduated a significant portion of graduates did not go into law, about 20% went into other professions, most of which utilized the legal training but were not "lawyers".

Posted by: Law Schools Online | Aug 31, 2012 5:38:06 AM

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