Legal Ed's Futures: No. 36 (Deborah Merritt)

Past, Present, and Future

 Several symposium participants have praised law schools for their innovations over the last generation. They note that schools have strengthened legal writing programs, expanded clinical offerings, and created new experiential courses. These advances are real, but they have been achingly slow. The MacCrate Report called for these improvements twenty-six years ago, and practitioners believed they were already long overdue. Law schools have made progress during the last quarter century, but the changes have often been grudging—and we still fall far short in preparing our students to serve clients.

I’m troubled, moreover, by the fact that these paeans to progress omit other ways in which legal education has changed during the last quarter century:

• Tuition has risen dramatically.
• Salaries for tenure-track faculty have also risen.
• Teaching loads for tenure-track faculty have fallen.
• Course sizes have declined, so that faculty grade fewer students in each course.
• Despite these reductions in teaching load, few tenure-track faculty have created experiential courses or increased the feedback they offer students. Instead, most schools have enhanced feedback and experiential learning by creating a pool of second-class professors.
• Resources devoted to marketing, admissions, career services, and other auxiliary services have grown markedly.
• Schools have developed elaborate systems of “merit” based scholarships.

If we want to plan effectively for the future, we have to acknowledge all of the ways in which legal education has changed during the last generation. We also have to ask whether these changes are sustainable—or appropriate for a profession committed to serving client needs.

We already know that the tuition increases of the last twenty-five years are not sustainable; most schools discount tuition significantly to attract students. Is our current scholarship system sustainable? Is it fair? Evidence suggests that our system of price discrimination maximizes income to law schools while disadvantaging minority, female, low-income, and first-generation students.

Are generous tenure-track salaries sustainable? Are they necessary? Today’s job market is demanding, risky, and unforgiving. Do law schools really have to pay as much as they do to attract talented faculty away from practice?

Can those tenured faculty members continue devoting so much of their time to research? Law professors do not support their scholarship through outside grants or alumni donations; we support most of our work through student tuition. Will students be willing to continue directing so many of their dollars to scholarship? Is it fair to ask them to do so, given the uncertainties of their own earning potential?

Finally, what are the effects of maintaining multiple categories of separate-and-unequal faculty members? These divisions undercut claims that law schools value writing, clinical, and other experiential courses. The divisions create considerable tension among colleagues working under the same roof. Our separatism also challenges a fundamental premise of higher education, that research complements teaching. If scholarship is essential for good teaching, then why do our scholars teach so little? And why do the faculty members who bear the brunt of teaching (especially in experiential courses) have no time or support for scholarship? 

We need to confront the full scope of our past and present in order to prepare for the future.

Deborah Merritt (Ohio St.)