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Tuesday, June 28, 2022

An Important Step...Sideways...in Legal Education

Again via Paul Caron, I note this post about USC becoming the sixth law school to offer an undergraduate degree in law. The Reuters story that Caron links to asserts that this is a trend that is "catching on" in American universities, which are "seek[ing] new ways to give students a head start on legal careers and help them better understand the role of law in society." (The Reuters story identifies three law schools doing so, but Caron points to other sources that add another three to the list.) The story offers the expected quotes about the general value of learning the law. One passage notes the value of such degrees in allowing graduates to pursue "law-adjacent careers in compliance and human resources." This is of some interest, since it connects the undergraduate degree "trend," if trend it is, to the unquestionable American law-school trend of offering one- or two-year degrees or certificates in "compliance." 

Without questioning the value of such programs or the sincerity of those advocating them, one is of course entitled to ask the standard "cui bono" question. Although stories and promotional materials from law schools always trumpet one-year increases in law school enrollment, the overall numbers have gone down from the period of steady increases that picked up speed around the 1980s and peaked around the time of the 2008 recession. Those of us who were around in the period around 2008-2011 can well remember what is was like to teach students who had enrolled at the height of the market and suddenly found themselves graduating into a very different and much bleaker market. Law schools have a physical plant, and its value and capacity is hardly exhausted by the (smaller) number of law students sitting in a given number of rooms for a limited period of time each week. After 2008-2010, it is surely fair to say that many deans (and provosts across campus) saw the potential value of turning to short-fuse "certificate," masters, and other programs. The tuition for such programs was or is often fully paid for (sometimes by employers) rather than steeply discounted. They can be staffed substantially by adjuncts with one or two faculty members serving as director. Such programs can extract more value out of the physical plant, make up for smaller JD enrollments and competitions to draw JD classes with US News-friendly metrics through scholarships and discounts, bring in additional revenue, and diversify law schools' business operations. And that's not even to speak of the role of online education, which allows one to extract value without even causing wear and tear on the building. One can sincerely describe the rise of compliance and the growth of HR departments out there in the real world as both a genuine need that ought to be filled with training programs, and a financial opportunity for law schools. 

But it seems to me that the rise--if six schools can be considered a rise, and if more schools take this step--in undergraduate law school programs raises the obvious next question, one that was asked occasionally during the initial period of writing about the state of law schools: Why not go whole hog? Offering undergraduate programs in law, while maintaining the general structure of American legal education, strikes me as a step sideways. The step forward would be to move more fully toward a more European model. Is it really absolutely necessary to keep our awkward mixed model of law schools as both professional education in the practice of law and scholarly education in the subject of law? Does such a model do justice to either of these goals? Why not shift those--both students and faculty--who are interested in law as a legitimate academic subject to an undergrdauate and graduate Department of Law, while offering a two-year professional program for those who wish to become lawyers, one staffed largely by practitioners, clinicians, and more practice-oriented full-time faculty?

It seems to me that one great benefit of such an approach is salary cuts. The professional school would rely heavily on adjuncts. And the salary of truly academically oriented law professors could be greatly reduced, making them commensurate with the kinds of salaries that are offered in most academic departments. As law schools follow a model of hiring Ph.Ds, that seems particularly appropriate, and those doctorate-holders could decide whether to pursue their work in a law department or a department of economics, political science, psychology, or whatever their field is. There are many lawyers (and current law professors) who have a genuine and enduring vocation to study and write about law as a topic and would gladly accept a lower lifetime salary for the opportunity to do so, along with the other benefits of life in a university, including tenure. If law departments required a doctorate in law or some other subject as a condition of employment, many would take that step and invest that time. Others--including some excellent scholars--might have the skill, but not a vocation so strong as to make them leave more lucrative careers for a department of law, with a salary lower than those currently offered at "law schools" under the current model. Maybe that's a genuine but acceptable loss. And maybe those whose interest is more in advocacy from a comfortable perch than a genuinely academic vocation would opt instead to work for advocacy groups or to pursue their goals in other ways. I might add a flipside benefit of salary cuts and of bringing the academic study of law closer to the model of other academic departments: If salaries were lower, and if departments of law brought their tenure rates closer to the rate that prevails elsewhere in the university and down from the extraordinarily high tenure rate of contemporary American law schools, law departments could (if the student demand existed) hire more faculty and, more importantly, take more chances in hiring. It's hard to take a flyer on someone who is genuinely promising and heterodox in his or her views, but doesn't already have a long paper trail and the usual set of ready-made credentials, if you know that a hiring decision is tantamount to a "yes" vote on tenure.   

If this "trend" is just about filling empty seats and finding new revenue streams, so be it. But if ought instead to be food for thought--including, perhaps, the thinking of university administrators. Maybe the academic study of law and the training for the practice of law would both benefit if the ostensible trend for undergraduate degrees in law resulted in an explicit two-track, two-schools approach.      

Posted by Paul Horwitz on June 28, 2022 at 12:52 PM in Paul Horwitz | Permalink


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