Legal Education’s Waterloo: The Last of the Fire Swamp

FLW

Begin here. Then read this.

Evidence

Despite the many flaws of law schools today, and despite naivete, ignorance, and obstinacy on the parts of schools, faculty, law firms, and practicing lawyers, I’m optimistic about the future.  Why?  Because I look at the large number of things in flux today, even looking only and specifically at law practice and legal education, and my story-oriented interpretation is that somethings (plural) are starting to shake loose. The scriptwriters, as they say, have given us a lot of plot points to chew on. There is evidence of instability, in small and maybe large respects, and the instability is resonating more powerfully than it has in the past. My optimism is intuitive: I’m optimistic that we may be able to decipher the instability, decode its sources and anticipate its payoffs, and plan and respond to it in ways that eventually produce great results. Like Westley and Buttercup in The Princess Bride, we may get through the Fire Swamp.

I may be entirely wrong.

But the following things are worth watching.

LSAT v. GRE. A relatively small number of law schools (so far) has challenged the hegemony of LSAC and the LSAT exam as the mandatory testing gateway to the JD.  Some schools now accept applicant scores on the GRE, which is administered by a separate organization, ETS, in lieu of accepting only LSAT scores.  Standardized testing is under attack in larger arenas for re-inscribing many of the forms of bias that standardized tests were initially conceived as resisting.  Who gets educated as a legal expert?

Competencies v. Mastery.  In some ambitious niches of legal education and the AALS, movements are afoot to advance both frameworks and curricula for teaching professional identity generally (per the third apprenticeship identified in the 2007 Carnegie Report, and its most innovative contribution) and for teaching things like leadership and design specifically. Much of the work involves training new lawyers in one or more competencies (knowing how) in addition to or instead of one or more forms of mastery (knowing what).  Novel forms of experiential education, like law labs, are often vehicles for competency-based training. Many of these efforts are only modestly reformist or not reformist at all; they’re proposing evolutionary revisions to the 20th century model of the ethical professional.  But even law professors, once unleashed to think differently about themselves, are prone to thinking about more grandiose impacts.  In some corners of the legal education world, someone may be imagining ways to lead and design our way out of traditional legal education altogether.  What counts as legal expertise?

Debt Loads and Discount Rates. Student debt loads have been a significant topic of concern in legal education since at least 2008, and really since the dot-come bubble burst and BigLaw hiring started a slow decline that accelerated during the Great Recession. Debt concerns alone haven’t yet translated into instability, partly because student loans remain heavily subsidized by the federal government and partly because law schools and their parent universities (in all but a handful of cases) have managed to fend off the financial wolves by clever accounting.  The instability here isn’t the debt alone; it’s how the schools have financed it.  Law schools reel in their students with heavy discounts off the “rack rate,” that is, the officially published tuition and fees, subsidized both by loans and by financing from elsewhere on campus, if that’s available, and by endowments and other investments, if it’s not.  Any particular law school’s discount rate is the statistic to watch; it’s the thing that keeps the Dean awake at night.  Cost of attendance data is part of each accredited school’s required disclosures to the ABA and is therefore accessible to present and future students. Meaningful, school-to-school public data on discount rates is harder to come by. Some well-regarded law schools have toyed with rates as high as 50%.  Applicants with higher LSAT scores can and do negotiate good deals on tuition and can play law schools off of each other.  This is brutal to the schools.  It’s unfair to students.  Who pays for expertise and the resulting benefits and privilege, and how, and who does not?

The ABA Commission on the Future of Legal Education. The key influence of the recent ABA Commission, if there will be one, will lie in its giving broad and enthusiastic cultural permission to innovators and experimenters both inside and outside of legal education. An ABA-sanctioned body has spoken and has spoken directly and explicitly about the troubles that lie before us and that lie ahead; never mind that it is not the Council of the Section on Legal Education and Admissions to the Bar. No one any longer needs to say, alone, as I and other have been saying for some time, that the system of legal education and regulation in this country is archaic and inadequate; no one any longer needs to take the risk, alone, of stepping outside the accepted boundaries of debate as to what might or might not be possible.  The waters of change may be daunting, but they’re warm. What should we try, when trying is encouraged?

Law School Closures, Mergers, and Musical Chairs. Law school closures and mergers are effects of instability in law rather than their cause. Inside legal education, numbers have been essentially flat or trending down for the last decade or so, with the number of new students enrolling across the US now at roughly the level last seen in 1980. The impact of those changes on particular schools is difficult to assess, because financial models vary so much from school to school and from university to university. Sometimes we should put the mechanics of financial and organizational struggle to one side and simply look at the outcomes. 

Here’s a partial list, drawn from the ranks of the accredited:  Hamline University’s School of Law merged with the independent William Mitchell Law School.  The University of Illinois absorbed the independent John Marshall Law School. Valparaiso Law School closed after an unsuccessful attempt to be acquired by Middle Tennessee State University.  Whittier Law School closed.  Recently, an upbeat press release announced that the University of Akron and Cleveland State University are opening talks about combining operations; a merger seems likely. The list of goings and comings among unaccredited law schools is longer. Beyond formal reorganizations, I know that law deans are setting in motion informal collaborations to combine teaching resources.  Why offer two sections of Torts at each of two law schools, when four sections can be combined into two remote sections and two Torts professors can be freed to do something else?

New law schools have opened in the last decade. UC Irvine, notably.  Belmont, in Nashville. North Texas, in Dallas. Objectively speaking, none of these schools is trying to capture a healthy share of an expanding national pie of students. Opening a new law school today means trying to capitalize on perceived opportunities to outcompete underperforming rivals. 

In some ways, I’m reminded of the great wave of law firm re-organization that took place between 1985 and 1995, with firms merging, closing, expanding, and generally moving about as the stately clubbiness of the elite private bar was reshaped by the forces of free agency for rainmaking partners. What happens when the music stops?

Licensure.  Over the past Summer, recent law graduates and their allies asked bar examiners across the US to restore a version of the diploma privilege that was once universal, in the interest of private and public health. What began as a kerfuffle over appropriate intermediate steps to transition new graduates into law practice has blown up, because of the regulators’ rigidity, into a full-blown inquiry into the purposes of licensure. It’s now revealed (again) for the exclusionary gatekeeping process that it is.  Will the bar exam survive, in any form?  Perhaps.  Will the bar examination process survive as a credible expression of law’s commitment to providing accessible, affordable, competent, and useful legal information and services on a broad scale?  That’s much harder to imagine. Who is recognized as a legal expert, and how?

Reregulation.  Utah and now Arizona have taken the first steps toward rethinking what organized legal expertise looks like in the 21st century. Other jurisdictions are actively exploring the same question.  “The bar,” run by and for lawyers, may not be the answer by default, as it has been for many decades. These aren’t student-led efforts. They’re efforts by alliances of progressive lawyers, open-minded judges, and thoughtfully engaged scholars – both in law and not in law – who have documented empirically the many ways in which the current organization of legal expertise does not, in fact, make society better off.  How will legal services be delivered and used?

Takeaways

One:  Infrastructure matters, today as well as in the future.

“Law schools” can’t change as a group because there are no systematic or institutional mechanisms in place that could motivate change at “law schools” across the board, or that could facilitate the kind of sharing of information and practice that system-wide change would require.  The only meaningful system-level driver of law school behavior is the set of accreditation standards published by the ABA’s Section on Legal Education and Admissions to the Bar.  (The US News and World Report rankings aren’t meaningful here, because they are agnostic as to program content. So long as a law school is accredited, it’s a black box to US News. All that matters is the data that it generates.) The ABA’s standards are notoriously rigid and backward-looking.  In future writing here, I’ll focus on what a new infrastructure for legal education would look like. 

Two:  Infrastructure doesn’t have to mean academia. 

The Big Four firms have scale, financial muscle, regulatory flexibility across most of the world and a lot of incentive to re-tool training programs.  Professional organizations for corporate counsel (ACC) and legal operations (CLOC) do likewise.  Right now, members of both organizations, like the Big Four and like most of BigLaw, are largely looking to law schools to develop their training infrastructures. Memo to law schools: Train students better!  But law schools, as a group, are designed to move slowly or not at all, and their university-based cultures are inflexible and difficult to re-design. Even if law schools do decide to try to catch up, by the time they do, who knows what the labor market will look like?  In the late 1970s and early 1980s, American consumers loved Japanese cars so much that Japanese automakers built plants in the US to serve North American demand, long before US automakers effectively retooled their systems. 

Three:  Students have power.

The diploma privilege debate is revealing in an important way. For the first time in my memory, current law students and recent law graduates have awakened to their own power to shape the future of law.  For a very long time, the student culture of legal education has been dominated by surrender to the prestige and economic power of the elite bar and private law firms.  What students and new graduates now know, via their leadership in the diploma privilege argument, is that if you volunteer to be treated like fresh faces as the law factory, by following the well-trod paths laid out by the presumably well-intentioned advisors, teachers, and professionals who went before you, then you’ll be treated like fresh faces at the law factory. It’s not clear that the generation coming through legal education right now has its predecessors’ appetite to sign up for the law factory. If students and new graduates get better organized than they are now, across a wider range of issues, then watch out.  It’s a passionate group, and they’ll bring heat.

Four:  Right now, be adaptable and resilient to the best of your capability.

All of the above means that the water is rough in general and isn’t likely to get calm any time soon, and that observation doesn’t begin to take account of the pandemic, the stock market, or anyone’s personal circumstances in any respect.  In Fire Swamp terms, those are flame spurts, lightning sand, and ROUSes.

For anyone looking for advice, and especially for students and new graduates, I’ll offer only this.  To maximize your odds of getting and keeping a job that you want, that pays well, that offers stability, future opportunity, satisfaction, and the kinds of impacts and rewards that you want, and combining hoped-for job and career success with additional kinds of stability, health, opportunity, and so forth, then in a phrase, skills matter more than substantive knowledge. The skills that will get you hired and keep you employed will help you succeed across other domains as well.  For a long time before I became a law professor, I helped to hire new lawyers for my firms. The question that I’d ask if I were doing that today is this. Why should I hire you rather than any other law graduate with a similar transcript and resume? 

Going forward, as technology continues to change the character of the human side of human-machine blends in expert settings, skills will matter even more. So-called soft skills (collaboration, teamwork, project management, leadership, EQ, tech stuff, finance stuff) are critical complements to technical skills (how to write well, how to negotiate a deal, how to construct a discovery plan, how to file a complaint) and analytic skills (how to discern a legal principle in a body of precedent). The goal is competence across a range, not only mastery of a specific body of knowledge. To people with different roles relative to responsibility, accountability, seniority, and initiative, my advice is to pursue distinctiveness and resilience, personally, organizationally, financially, commercially, and substantively.  Why should I hire you rather than rely on a legal robot?

If you don’t have the skills that you want and need, or if you want to make more of the skills that you have, there are ways to understand and to learn, probably at your own law school, or within relevant professional organizations, or via advising and relationship building beyond your home worlds. Make the skills explicit parts of your game plan and your portfolio.  There are lots of people out there who want to help the next generation of legal experts succeed, for many different good reasons.  I regularly encounter more of them, in academia, in law practice, in legaltech and elsewhere, in the US and around the world.  Reach out.

You can survive the Fire Swamp.

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Bonus

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