Legal Ed's Futures: No. 21

At the outset, I will confess to two biases that likely color my view of the futures of legal education.  First, I am a former deputy managing director of the ABA Section of Legal Education, and so am prone to see many of the opportunities and challenges facing legal education through a regulatory prism.  Second, I am pessimistic about the futures of legal education, at least in the short and medium terms.  Change will come, but I believe it is likely to entail the demise of many of the existing structures, and so will be resisted fiercely and for as long as possible.  On the bright side, this dire outlook should help to reinforce Mike Madison’s premise that the need for change in legal education is urgent.

Symposium contributions so far have assumed but not explicitly detailed what I think most of us would agree are the two biggest problems facing most of our students: (1) the exorbitant cost of legal education, and the associated debt burdens; and (2) too many graduates chasing too few entry-level law jobs.  (I will not repeat the numbers here, but for those who are interested, I have collected and presented the relevant data in a paper to be published in the Journal of Legal Education, a draft of which is available on SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2998306.)  Add to this a rankings system that dominates student decisions about where to go to law school, and thus seemingly compels schools to pursue admissions, financial aid, faculty hiring, spending, and curriculum policies that preserve the status quo and make legal education an engine of wealth inequality.  At the same time, there is an appalling access to justice gap for millions and millions of people who cannot afford lawyers or obtain publicly subsidized legal services.

I would echo the comments of several others so far that curricular innovations within individual schools are not likely lead to a transformation of legal education. This is mainly because such innovations have only a very marginal impact on students’ decisions about where to go to law school.  Ranking, geography, scholarship offers/cost, and bar pass and employment outcomes (with these outcomes being a sizeable factor in rankings) drive enrollment decisions, while curricular innovations are relevant to only a few students and then only when they are deciding on which of a few schools in the same rankings band to attend.  Moreover, curricular innovations, including expanding distance education, are just as likely to add to the cost of legal education as to reduce it. 

There is one idea that I have seen so far in the symposium that has the potential to significantly reduce cost and debt (and thereby potentially address some of the access to justice gap).  Dean Hunter has suggested the “modest proposal” of making the law degree an undergraduate degree instead of a graduate degree.  He suggests that a university without a law school would be a more likely place to start the experiment, but the idea should be attractive to universities with law schools, too, if they think they could replace current net revenues from the law school (or stem the red ink). 

There are serious practical impediments to the idea, but they could conceivably be overcome.  Perhaps the two most significant are that (1) the ABA’s accreditation authority as granted by the Department of Education (ED) is for the JD degree; and, (2) because graduation from an ABA school qualifies graduates to sit for the bar in all U.S. jurisdictions, state supreme courts and bar admissions authorities would have to be assured that the preparation of a graduate with a B.A. in law would be reasonably comparable to that of J.D. holders.  While it would be possible for universities to add a B.A. in law that is regionally but not ABA accredited, as the University of Arizona has done, ABA approval generally is necessary in order for graduates to sit for a bar exam.  The ABA could seek to have its ED accreditation authority expanded to cover a B.A. degree in law.  If and when that is accomplished, the ABA Standards would have to be changed to eliminate the requirement that applicants have a B.A. and perhaps also the requirement of an LSAT score (which is currently under consideration by the ABA).  I’m not sure how best to go about assuring state supreme courts and bar admissions authorities that the B.A. graduate will be as competent as the J.D. graduate, but if they are taking the same bar exam, that would not seem to be an insurmountable problem.

Another “idea” that would dramatically change the cost/debt and graduate employment rate crises is for the federal government to put a cap on what law students can borrow under the title IV student loan programs.  This seems to be the elephant in the room that no one wants to talk about, but it is exactly what the House of Representatives Committee on Education and Workforce has approved in its Higher Education Act reauthorization bill, setting the cap at $28,000 per year for tuition and other costs of attendance combined.  Knowledgeable observers say that there is a reasonable chance that the Senate bill will include a cap, too, setting it at closer to $40,000.  A cap in either amount (or even $50,000 or $60,000) would immediately and dramatically impact non-elite law schools in direct relation to their costs of attendance.  Students would be forced into the private lending market for every dollar above the cap that they need to borrow in order to attend law school.  Unlike the federal loan program, private lenders underwrite their loans, which would likely mean that schools would have to reduce costs to below the cap or guarantee repayment on behalf of their students.  While making schools put some “skin in the game” would be a good idea in principal, they would bear the burden of proving the value proposition of their programs and almost certainly scores of schools would be unable to do that.  At more than a few schools today, the large majority of graduates likely qualify for an Income Driven Repayment plan.  On the other hand, a carefully calibrated cap could well have a healthy impact on both cost/debt and the mismatch between the numbers of law graduates and the numbers of available entry-level law jobs.

If legal education does not act to get a meaningful grip on high debt and poor employment outcomes for so many law graduates, it is more likely that a draconian solution such as a federal lending cap will be imposed on us.  What can we do to solve these challenges before a potentially disastrous solution is imposed from outside?  In the spirit of previous posts, here are a few ideas – I’ll call them less-than-modest proposals:

1. Law schools should stop participating in the rankings.  The pernicious impact that they have on almost every aspect of the law school program, from admissions and financial aid decisions to the phenomenon of law school funded graduate employment, is almost universally acknowledged.  They have rewarded schools that increase per-student expenditures, fueling increases in tuition; and brought about the demise of need-based financial aid, restricting access to the profession by lower-income and minority students.  While we may have started down the rankings road innocently enough, the world we have created makes continued collaboration with US News ethically dubious at best.  A rankings boycott is not a new idea, and the conventional wisdom is that the prisoner’s dilemma cannot be solved, but perhaps we are finally at the breaking point.

2. Do not increase enrollments along with the increase in applicants this year.  It is very good news that both the number of applicants and their scores on the LSAT are up this year.  But it would be a grave mistake for schools to increase enrollments where there is no evidence that the number of entry-level law jobs will increase in the foreseeable future.  Another prisoner’s dilemma.

3. Work to change the culture around student borrowing within schools.  At Michigan State, a well-conceived and carefully-implemented plan brought average student borrowing down significantly over several years without increased tuition discounting.  

Scott Norberg (Florida International)