Consider the existing law school as an institution, or as kind of community, and as faculty we are touched with the warm fuzzies. I share many of those fuzzy thoughts, but my contrarian streak will out. Law professors cannot construct or reconstruct legal education without accounting for its place in law and justice generally. Do we have too many law schools, or the wrong kind altogether?
Our students rarely feel the communitarian fuzzies. Consider this recent Chicago Tribune article on the salaries “commanded” by recent law graduates, on the debt they carry, and on the changing economics of the legal profession. (H/T Bill Henderson at Empirical Legal Studies):
Academic researchers believe change is coming to the profession. John Coates of Harvard Law School, for one, has a clear vision of how economics will reshape long-standing practices. He foresees the American Bar Association and state bar examiners coming under pressure to reduce the cost of law school by relaxing rules. That could mean accrediting online programs or allowing two-year degrees instead of the standard three.
Restrictions on practicing law without a license also will relax, Coates predicts, so paralegals can handle house closings, leases, simple contracts and wills. More legal work will be carried out at a discount offshore, as well. In the wealthy corporate sector, Coates foresees publicly held firms from England and Australia using their superior capital to challenge U.S. rivals.
That, in turn, will encourage a change in rules that limit the ownership of American law firms to lawyers.
Eventually, Coates says, the great divide in lawyer incomes will divide again, this time into three categories: The super-highly-paid, a middle tier of the highly paid and, by far the biggest group, everybody else.
None of these changes will come easily, he says, but inevitably the economics of the legal profession will trump its outmoded traditions. “The one thing I can guarantee: There will be a lot of fighting.”
So, when we talk about what kind of institution we want the law school to be, should we assume even the most basic of legal education’s current foundations? How about a more radical rethinking? Should we:
- expand opportunities for legal education, making it cheaper and more accessible, so that fewer new lawyers earning mid-range salaries (and lower) are crushed by debt service?
- contract opportunities for legal education, pulling up the drawbridge and limiting the number of new lawyers, so that more new lawyers earn high salaries and are less likely to be crushed by debt service? We might cut the number of slots in entering classes or even pursue the unthinkable — get rid of excess capacity by terminating some law schools outright, perhaps even including some schools at the higher end of the pecking order. Off-shored, out-sourced, and non-licensed para-legal “professionals” could handle the day-to-day servicing now performed by poorly paid lawyers.
- more severely distinguish the teaching and scholarship functions of legal education, as suggested by Orly, but more traditionally: Locate the scholars in an academic department within the faculty of arts and sciences, and offer both undergraduate and graduate programs there. The professional school could be spun off altogether to offer technical training for future practitioners.
These are thought-experiments for now, not real proposals. The options are not necessarily mutually exclusive, so it’s fair to mix and match from what I’ve written, or add and subtract. But by flagging the possibility that some law schools are tear-downs, not candidates for educational versions of This Old House, I want to highlight some of the raw tradeoffs that accompany any serious or even semi-serious approach to institutional change. Consider not only the different impacts on access to professional education, on salaries and debt, and on access to justice generally, but also on the quality of lawyering, on job satisfaction among lawyers, on respect for law and lawyers throughout society, and on the character and quality of research and scholarship on law. John Coates’s predictions resonate for me. Do they portend the demise of the law school as we know it today?