Law school applications are way up! Let's wait on the parade

[republished from my Substack. Subscribers welcome!]

Let the bells ring out during this holiday season . . . for American law schools. Especially those schools who fret about enrolling a sufficient number of students and, further, students whose hard and soft measures promise that they will have a good chance of succeeding. Applications are up thus far, way up, and signs point to an abundance of riches for law schools more or less across the board. Moreover, concerns about minority student enrollment, concerns turbocharged by the Supreme Court’s decision restricting the use of racial preferences, are ameliorated by the evidence (at least thus far) that minority applications are up by a considerable margin.

While this is not the space to throw cold water on what is good news for law schools in their business objectives, I urge a pause to at least warn the collective us in legal education not to fall into the too-familiar trap of seeing the currently bullish market as an excuse of complacency, as an opportunity to eschew innovation because business-as-usual apparently is meeting the tenor of the times. Let’s be clear that a run up in applications doesn’t make any serious headway in addressing persistent problems, including:

• Sticky and mainly ignored is the traditional financial aid models of law school, models that invest greatly in merit-based aid for high flyer applicants on the idea that such students will be subsidized by below-median score students who will pay full freight. More applicants might mean larger classes, greater revenue, and therefore some incentive to ameliorate the equity effects of this common form of financial aid engineering. Yet, experience tells us that law schools do not ordinarily expand meaningfully the size of their classes in order to accomplish these goals. And nowhere should this comment be read as urging law schools to necessarily do so. Size matters, and the objectives of law schools to keep their educational program sensibly organized around a certain size so as to improve faculty-student ratio and job prospects for students in a legal marketplace that, while not unpromising these days, is still basically flat at best, should be maintained to the extent possible. However, the challenge is how to address the brute inequities of a system that incentivizes these familiar cross-subsidies from the “bottom” to the “top.” Increasing law school applications shouldn’t blind law schools to the fact that current financial aid problems raise problems to be solved, not excused by the claim that “all schools basically do the same thing” and such;

• Efficiencies and innovation in pedagogy should be important goals, in both rainy and sunny times. Law school curricula continues to remain largely static. The rise of clinical education was, to be sure, an extraordinary development in legal education. But that development is a half century old and the traditional model that puts experiential education as an important complement to, but never really a substitute for, classic doctrinal instruction persists. Perhaps that is how it should be, for innovation doesn’t necessarily mean scrapping the status quo for something altogether different. Disruptive innovation isn’t measured by how many plates are broken immediately; rather, it begins with serious, intentional scrutiny — that is ideologically eclectic and evidence based — of current educational programs and structures, taking account of the rapidly changing demands of the legal marketplace. Such scrutiny should be ongoing; and it is a misnomer to put it into the bucket of episodic curricular “reform.” Reform follows assessment, and deep and broad assessment should be a core element of the ceaseless strategic planning that law schools and universities of which most are a part ought to do — not occasionally, but always. This is as true when application patterns are rosy, as when they are dire. True, big innovations in law school curricula are less necessary as part of advertising campaigns to recruit students from “boring” competitors when the applicant pool is nicely robust. But, after all, public relations is not the primary reason for reassessment and reform; the reason is that law schools aspire to be the best possible engines of coherent, socially and economically relevant, progressive, and efficient legal education. The centrality of this goal ought not to turn on one or two-year revenue projections;

• Viewed overall, law schools should not make the mistake of tying applicant eagerness (is it the Trump bump? is it economic opportunity? is law now a “hot” profession? Who knows!) to agnosticism about what they are getting from their law schools, in terms of curriculum, services, career support, ambition, etc. Two things can be true at once: More young people are motivated to apply and attend law school and, second, these same young people have high expectations and of the law schools they hope to attend. There is at least some ambient evidence that students of the present and near-future are demanding more of their educational institutions. An innovation-minded law school may not viewed best as a school that merely caters to a limited set of student expectations, but, rather, as a school that deeply considers how to create educational schemes and structures that are designed to educate in holistic, pluralistic, and pragmatic ways students who will leave and take roles and positions in the legal marketplace broadly defined, and who will, we should hope, will be attentive to the outsized influence of lawyers in the world. They will be protectors of the rule of law, instruments of justice in the trenches as well as in the meta-design of institutions and constitutional guardrails. Moreover, they should learn well in our law schools about the persistent access to justice crisis that inflicts the U.S. and should think about creative ways in their own careers to address the A2J crisis;

• All of these goals (and others that could be listed) must be considered and hopefully achieved in an ecosystem made up of individual law schools which are relentlessly innovation-minded. A temporary applicant boom should not be an excuse to take the pedal off the metal. On the contrary, while this welcome increase helps shine a spotlight on the state of law schools and, in the minds of deans and others, enables these schools to shine more brightly at least for a while, this is a golden opportunity to consider our predicaments and our promise. An innovation mindset is what is required at the very least.