Legal Ed's Futures: No. 46 (Luke Bierman)

Upon the recent arrival of the 2019 USN&WR rankings of law schools, I found myself doing an annual head shake accompanied by an annual, “I wish they wouldn’t do that.”  Appearing in the middle of this virtual symposium, the USN&WR rankings inspired me to reflect on other things that I wished in our challenging world of legal education.  And so, it occurred to me that a wish list might be a good way to comment on the interesting and various postings that make up this symposium.  Please note that this list is by no means complete or all inclusive. 

First, as noted above, I wish they wouldn’t do that.  The USN&WR ranking really is as pernicious as so many of us think.  As noted by several commentators here, it overvalues things that are awfully hard to shake, like reputation, and undervalues things that demonstrate relevance, like professional associations.  But overall, it fails to capture the values that different schools provide in their teaching, in their scholarship or in their communities.  The effort that we collectively place on chasing modest changes in rank, while privately admitting that this system is seriously flawed, misaligns our priorities.  As Jerry and Scott suggest in posts, let’s all agree to stop it.  Let’s finally put up AND shut up … I wish we all just stop participating in solidarity of disapproval.  Let me add, this list hardly is comprehensive or all inclusive.

 

Second, I wish, like Joan, we employed a better way than the bar exam to test fitness for entry in our profession.  The bar exam, designed to test some version of knowledge that once was limited in availability but now is readily available to all, represents an antiquated conception of fitness for admission to the bar.  Even the increasingly prevalent uniform bar exam, with its helpful portability in our growing national if not international profession, fails to fully embrace the transition from testing mere knowledge of the law to testing use of law that is more widely expected and actually taught in law schools today.  The current approach inhibits creativity by forcing schools in various ways to adhere to the constraints of the bar, antiquated as it may be.  The failure of our profession, including state high courts, to encourage bar examiners to adopt alternative models of ensuring readiness for entry, such as New Hampshire’s Daniel Webster program or the in-state law graduate admission program in Wisconsin (ironically, the home of the National Conference of Bar Examiners), represents a real missed opportunity to expand thoughtfully and systematically our profession.  The bars of New Hampshire and Wisconsin do not seem to have suffered for these adaptations and we might well positively address our failure to attract and empower new practitioners who could reach underserved clients in a manner that would assuage concerns shared by many of us as expressed in many ways in this symposium.     

And while we’re reconsidering the bar exam, I wish we could do better in assessing applicants for admission than we currently do with the LSAT and, increasingly, the GRE.  As more and more colleges and universities eschew standardized admissions testing and even the LSAC by its own disclaimers significantly limits the value of the LSAT, why haven’t legal educators demanded better assessment of readiness and preparation for law school?  The LSAC plays essential roles in admissions but certainly those roles can be more attuned to our contemporary circumstances.  Kellye may be fighting a good fight against long odds as Dan R. reports.  But there is a wealth of information to be mined about those who consider and choose law school and a career in law but we seem to have ignored that treasure trove while some (read… mostly well-resourced institutions) rush to use the GRE as a predictor of success and expander of the applicant pool.  Certainly in this developing age of data analytics, I wish we would develop better tools to help us find those students, including and maybe even especially those with nontraditional or underrepresented backgrounds, who will prosper in our many and varied law schools. 

And since we’re raising the specter of data analytics, I wish I knew more about what our students do when they are not in class.  I know the ABA standards reflect some expectations about how much out-of-class time students should spend in relation to class time and we can calculate those assessments.  But wouldn’t it be better to know actually what students are doing?  Are they reading assignments, are they shoe shopping, are they making outlines, are they talking about some Netflix show they watched?  We can be more effective at teaching if we know more about how students actually use their time, as Dan Hunter alludes to.  While John Mayer’s reminder about some tech oriented teaching tools is helpful, there remains much more to do to inform pedagogy and reach our students.  Since there are e-monitors for activities performed by athletes, surely we can devise ways to learn more about our students’ academic pursuits.  And then I wish we could couple that knowledge about out-of-class time with what actually is happening in the classroom. What powerful teaching and learning experiences those could be.    

And so I wish we would come to some consensus about distance learning, if not the impact of technology more generally, which holds at least some hope for positively affecting the cost and debt issues that lie near the root of our recruitment challenges.  As the ABA standards move toward more permissiveness around distance learning, we must undertake serious efforts to define the parameters around which virtual teaching and learning can best be used to reduce costs, reach new students and make law school exciting again.  Experiential pedagogies must likewise be adapted to make new learning appealing to those who are neither excited nor attracted by the current ways we educate and prepare future lawyers.  As we currently suffer from these concerns, then stand back as the next generation of prospective students is beginning to appear on our doorsteps, tethered to devices and platforms that I bet many of us can barely spell or pronounce, let alone use.  

I also wish we collectively paid greater attention to colleges and universities, which are producing our students and which directly impact legal education.  The demographic trends of high school graduation and college attendance will be our experiences four years later and already are being felt in the enrollment and budgetary challenges that many, if not most, colleges are experiencing.  Our business model, highly dependent on tuition for most law schools, is at best suspect under those scenarios, without even accounting for likely reductions in federal financial aid that now seem inevitable.  If 80% of law students at 80% of law schools are dependent on financial aid for tuition, then our failure to focus on these issues will not serve us well into the future as we all already struggle with enrollment and resources.  Sustainability must be at the core of our strategic approaches, and, to Robert’s point, we all must come to like strategic planning, which after all is an important component of thinking like a lawyer.  The posts about undergraduate education and destratifying our profession and our law schools are particularly relevant to the sustainability of our mandates as lawyers and educators and must become part of that strategic planning and direction, even if that means pushing harder at our profession’s leaders, not to mention ourselves.    

I also wish I didn’t feel like my law school is an afterthought to those in some of our membership associations because we do not qualify as an elite school, whatever that may mean.  Dan R.’s most recent post about our professional associations focuses appropriately on collaboration but I hesitate to say I fear it aims a bit high.  Most lawyers in our country will be educated at non-elite schools and they not only will do well in their careers and do good for their communities but they will be our profession’s leaders in the future.  This is a challenging era nonetheless full of opportunity when we must embrace every school’s contributions and efforts to improve our enterprise of legal education and not just those with resources that far transcend mine.  Those few well-resourced law schools are important to our ecosystem, but no more so than those less well-resourced law schools that must rely on artfulness and creativity to remain relevant in the super competitive environment of legal education.  If we are to achieve the collaboration that Dan R. aims for, then I wish we recognize more concretely and thoroughly that we are all pursuing the same commitments together.   

And perhaps most importantly, I wish us not to be afraid.  We have accomplished great things… people have walked on the moon, civil rights have expanded, deaths from auto accidents and cigarette smoking have decreased, and violent crime has become less prevalent.  Yet during this time of positive achievement, our profession has not made nearly the kind of progress in diversity and delivering legal services to the poor that we have aspired to.  Without diminishing the inspired efforts of so many of our colleagues and friends, the facts remain that, over the last 25 years, women and people of color have not advanced as far in our profession and those in need have not received as much legal assistance as we had hoped.  We continue to convene commissions and promote conversations that, to my ear and eyes, seem much too similar to the meetings, talks and projects of 25 years ago.  It no longer is 1995.  It is time to embrace the dynamic world in which we function and move with it.  Shared governance, strong leadership, new conceptions of curriculum and pedagogies, different directions for faculty organization and expectations … these are all a part of this moment.  It is time to heed, boldly and assuredly, Professor Madison’s initial call to action.  Middle roads may seem safe but the times, once again, are a-changing.  It is time to do.  Because if we don’t, others will.  And we may not like what those others will do.  

Luke Bierman (Elon)