Fixing Law Schools

From Collapse to the Trump Bump and Beyond

Benjamin H. Barton

• Publisher: NYU Press
• Year: 2019
• Print ISBN: 9781479866557
• eBook ISBN: 9781479869596
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

An urgent plea for much needed reforms to legal education

The period from 2008 to 2018 was a lost decade for American law schools. Employment results were terrible. Applications and enrollment cratered. Revenue dropped precipitously and several law schools closed. Almost all law schools shrank in terms of students, faculty, and staff. A handful of schools even closed. Despite these dismal results, law school tuition outran inflation and student indebtedness exploded, creating a truly toxic brew of higher costs for worse results.

The election of Donald Trump in 2016 and the subsequent role of hero-lawyers in the "resistance" has made law school relevant again and applications have increased. However, despite the strong early returns, we still have no idea whether law schools are out of the woods or not. If the Trump Bump is temporary or does not result in steady enrollment increases, more schools will close.

But if it does last, we face another danger. We tend to hope that crises bring about a process of creative destruction, where a downturn causes some businesses to fail and other businesses to adapt. And some of the reforms needed at law schools are obvious: tuition fees need to come down, teaching practices need to change, there should be greater regulations on law schools that fail to deliver on employment and bar passage. Ironically, the opposite has happened for law schools: they suffered a harrowing, near-death experience and the survivors look like they're going to exhale gratefully and then go back to doing exactly what led them into the crisis in the first place.

The urgency of this book is to convince law school stakeholders (faculty, students, applicants, graduates, and regulators) not to just return to business as usual if the Trump Bump proves to be permanent. We have come too far, through too much, to just shrug our shoulders and move on.

1

THE ORIGINAL SIN

LAW SCHOOLS TEACH LAW BUT NOT LAWYERING

For as long as there have been organized law schools in the US, critics have complained (accurately) that law schools do a relatively poor job of teaching students the nuts and bolts of law practice. Law schools have always chosen to focus on broader theory and “thinking like a lawyer” instead. This is the oldest of the old-school critiques, but it has gained new salience after 2011 as the “law schools in crisis” narrative has really taken off.

If you are in the mood to read an eloquent, and still amazingly timely, version of this critique, consider reading the legal realists Karl Llewellyn and Jerome Frank. Frank wrote the seminal 1947 Yale Law Journal article “A Plea for Lawyer-Schools.”1 Llewellyn wrote the more influential, and equally devastating, 1944 Association of American Law Schools (AALS) report on law school curriculums that noted that the case method was failing to produce “reliable professional competence.”2 If you are among the readers who pooh-pooh this critique as largely the product of lawyers who have an insufficient understanding of the value of great legal scholarship, consider that two of the greatest legal scholars of the twentieth century strongly disagree with you.

You can read the fullest current version of this critique in two exhaustingly researched and well-written 2007 publications, Roy Stuckey’s Best Practices for Legal Education and the Carnegie Foundation report entitled Educating Lawyers.3 Brian Tamanaha’s excellent Failing Law Schools, Paul Campos’s blogs and books, and Steven Harper’s The Lawyer Bubble offer more recent and quite pointed critiques as well. Law schools spend too much time on academic pursuits and training students to “think like a lawyer” and too little on actually teaching students the nuts and bolts of the practice of law.

These same critiques have leaked out into the popular press. In 2011, the New York Times ran an article entitled “What They Don’t Teach Law Students: Lawyering” that gave a brisk and damning summation of law school deficiencies on this front.4 The article noted that one survey found that almost half of the recent hires at top law schools had never practiced law before joining academia. The article also took a potshot at abstruse and overly academic law review articles, singling out a particularly goofy, word-salad article entitled “Future Foretold: Neo-Aristotelian Praise of Postmodern Legal Theory.” Picking on silly law review articles is shooting fish in a barrel of course, and the story itself was hardly breaking news for the Times: they published nearly identical articles in 1983 and 2014.5

This critique is surely correct, but it faces two ironies. The first is that due to the growth of clinical legal education, externships, and simulation programs in American law schools, there are now more opportunities to learn how to practice law while in law school than ever before. In fact, the American Bar Association (ABA) changed its accreditation requirements in 2014 to address this specific complaint, requiring that law school graduates take a mandatory six hours of “experiential” learning before graduation and allowing students to work more outside of law school.6 Six hours is hardly a cure-all, but that requirement is a beginning, and it is true that more law schools expend more energy and effort on practical training than they have since before World War II, if ever.

The second irony is that the experiential complaint is as old as law school itself and misunderstands the fundamental nature of American law schools. We turn first to a brief history of how we ended up with the lawyer-training/legal education model we have and then a brief discussion of the problems that flow naturally from that history. Law schools did not back into this problem, and it did not happen accidentally. They were born this way.

THE “EXPERIENTIAL” PROBLEM: LAW SCHOOLS’ ORIGINAL SIN

History is written by the winners, and humans have always attempted to arrange it into a tidy narrative with good guys and bad guys, and the triumph of the right side over the wrong one. This explains much of the generally accepted history of law schools. In the original narrative, law schools played a key part in creating the modern legal profession and creating order (the scientific study of law) from chaos (apprenticeships).

Consider former Harvard Law School dean Roscoe Pound’s excellent (if heavily slanted) 1953 history of the American legal profession, The Lawyer from Antiquity to Modern Times. Pound describes the period of 1836–1870 as “the era of decadence” because bar associations, and thus the legal profession in his telling, had fallen into disrepair.7 The country was saved by the “revival of professional organization” after the Civil War.8

The replacement of apprenticeship with legal education plays a key role in this story of the triumph of professionalism.9 In this version, American lawyers used to train for the profession by serving a set term of years as an apprentice to a practicing lawyer. Following the Civil War and during the Industrial Age this process was recognized as primitive and inadequate and wisely replaced by the more scientific law school program we have today.

This version of the story focuses too hard on just one of the three formative battles that law schools have faced along the way and thus misses exactly why law schools look the way they do now. A closer examination of the history shows that the first battle was indeed against the deprofessionalization of Jacksonian democracy. The elite bar’s first job was not to support law schools in a battle against apprenticeships. Instead they fought to reinstate any formality into the requirements for entering the profession.

Law schools did, indeed, eventually have to beat back apprenticeship, but that was only half of the battle, because while law schools tried to replace apprenticeship with the elite, academic Harvard model, they faced an even greater threat from their other flank: much cheaper and much less academically oriented proprietary schools. Proprietary law schools presented a different threat: inexpensive legal education for the masses. In the first three decades of the twentieth century, it was unclear which model would triumph.

Below we take a brief trip through these battles because the strategies that led to the triumph of elite-model law schools also explain much of the puzzling nature of current law schools. If you are wondering when and why law schools became too focused on the scientific and academic study of law, the answer is that they have always emphasized the academic study of law over the practical, because that was their main differentiation from their twin enemies: apprenticeship and proprietary law schools. The overly academic nature of law schools is thus neither an accident nor peripheral to their existence. The overly academic study of law is in fact the raison d’être of the elite model.

MODERN LAW SCHOOLS ARRIVED INTO DEPROFESSIONALIZATION

In the early nineteenth century there were a handful of American law professors and the beginnings of what might later be called a law school (William & Mary and Harvard were early examples), but the vast majority of American lawyers were trained in formal apprenticeships.10 Twelve of the thirteen original states required some period of apprenticeship before entering the practice of law, and none required any formal legal education.11

The election of Andrew Jackson in 1828 launched Jacksonian democracy, a period when governments of all levels tried to change their laws to disempower American elites. The legal profession was a natural and juicy target. The years from 1828 until the Civil War brought a number of reforms that were hostile to the formalized legal profession. Legislatures made great efforts to simplify pleading standards and codify the common law in order to break the lawyer’s monopoly in the law and courts.12 States also moved toward elected judiciaries to rein in judicial power.13

Most importantly for our purposes, legislatures made every effort to lower barriers to entering the legal profession, and over this period apprenticeship requirements melted away.14 New states joined the union with few entry requirements, and existing states rolled theirs back. This effort was remarkably successful. By 1860, only nine of thirty-nine jurisdictions had any fixed apprenticeship requirements. None required law school.15

This led to a predictable collapse in interest in bar associations and formal legal education. It is too strong to say that the legal profession was completely deprofessionalized. There were still influential and wealthy lawyers who maintained a professional identity. But it is certainly fair to say that the profession hit a nadir in terms of formality.

THE BAR ASSOCIATION REPROFESSIONALIZATION PROJECT

It is important to understand the nature of the legal profession (such as it was) in the middle years of the nineteenth century because the struggle to reprofessionalize informed every step of the creation of the modern law school. In the 1870s and 80s, the choice was not between a functioning apprenticeship system and a resurgent or redesigned law school system. To the contrary, Jacksonian democracy essentially killed law schools, formal apprenticeship, and even bar associations themselves, so the reprofessionalization movement arrived with a relatively blank slate, but also a steep hill to climb.

In many ways, doctors set the model for lawyers. Doctors faced similar challenges during Jacksonian democracy, but they started their reprofessionalization project sooner. Lawyers followed their lead repeatedly. A select group of elite doctors formed the American Medical Association (AMA) in 1847.16 A similarly elite group of lawyers formed the ABA thirty years later in 1878.17

The AMA railed against the results of low-entry standards, claiming the medical profession had become “corrupt and degenerate.”18 The ABA felt similarly about the legal profession, arguing that low standards had led to a generation of lawyers “believing themselves immune, the good or bad esteem of their co-laborers is nothing to them provided their itching fingers are not thereby stayed in their eager quest for lucre.”19 Both the ABA and AMA recommended that each state form a central licensing board and that entry to the respective professions be through formalized and required professional schools rather than apprenticeship.

Why did the ABA not return to set periods of apprenticeship rather than pushing for law schools? After all, apprenticeship had previously been required in the United States, and law school had never been. Given that it was likely to prove difficult enough for the ABA and local bar associations to fight back against forty successful years of Jacksonian democracy, why raise the degree of difficulty more by skipping over apprenticeship and moving right to formal law school training?

A separate trend sweeping American elites (like the lawyers who formed the ABA) explains why the reformers favored law schools over apprenticeships. The Industrial Age’s push for standardization in all pursuits suggested that a rigorous and scientific educational program would always be preferable to an ad hoc apprenticeship approach.20 This era also saw the birth of the modern American university, and law schools, not apprenticeships, fit the trend. The ABA was thus enthusiastic about the “scientific” study of law, favoring German and French university-style models.

Not coincidentally, in 1870 Dean Langdell of Harvard Law School introduced a new, more scientific study of the law: the case method.21 This set the model for the study of law and is still dominant today. The case method was explicitly scientific and argued that law could be best understood by the distillat...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• Introduction: The Lost Decade
• 1. The Original Sin: Law Schools Teach Law but Not Lawyering
• 2. The New Problem: The Job Market for Law Grads, 1990s to the Present
• 3. Future Shock: Will Computers Replace Lawyers?
• 4. Boom to Bust for Law Schools
• 5. Why Haven’t More Law Schools Closed? Part 1: Market-Based Closures
• 6. Why Haven’t More Law Schools Closed? Part 2: ABA Accreditation
• 7. Why Haven’t More Law Schools Closed? Part 3: The DOE
• 8. The Middle Class Sweats It Out
• 9. The Good News and the Bad News from the T14(ish)
• 10. Should I, My Child, My Buddy, or Anyone Go to Law School?
• Conclusion
• Coda
• Acknowledgments
• Notes
• Index
• About the Author