But on the other hand, the same style works to brilliant effect on this ACLU “Demand Your Dot Rights” campaign. And I imagine it’s about the only way to get a larger number of people to think about topics like the ones Sheldon Wolin discusses in Democracy Incorporated: Managed Democracy and the Specter of Inverted Totalitarianism. As Mackenzie Wark puts it, “The real world appears as a video arcadia divided into many and varied games. Work is a rat race. Politics is a horse race. The economy is a casino. . . . Games are no longer a pastime, outside or alongside of life. They are now the very form of life.” When people no longer care much about privacy, they need to be shown how its lack can directly undermine their “reputation score” in the game of life.

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It’s been a fantastic discussion on a wide array of issues. Deven noted in his concluding post that the idea was “many people with many views would mix it up and push the limits of what we know and think about legal education.” Well, I think that was what we got. And that idea itself seems to capture my basic thought on the future of legal education: diversity in approaches.

First, diversity in the approaches/strategies across law schools. One problem identified in the discussion last week seems to relate to herd behavior driven by US News rankings, perhaps even a drive to emulate the elite. But even some of the elite schools are questioning their approaches to legal education and can learn something from the non-elite schools. It seems rather clear, to me at least, that there is not a single “ideal” approach to legal education and that the societal ends that law schools serve vary widely. Of course, training students is at the core, but we train students for many different careers within the law and outside of law practice. All law schools lay basic foundations (and naturally some debate what those foundations should consist of), and what is constructed on top of the basic foundation varies across schools–as it should in my view. The foundation consists of generic capacities including skills, knowledge, values, and language that are essential building blocks; how should those blocks be adapted and refined? That is a tough question that can be answered differently by the students, their advisors, professors, current and prospective employers (the market, if you will), “the profession,” and various other interested constituencies too (e.g., other professions, government).

I am not convinced that any one of these groups is best suited to answer the question, however. That is, I am not comfortable relying, for example, on students as consumers of legal education (or on professors as suppliers, or firms as consumers, etc.). I suppose the way I have framed this reveals why I am uncomfortable–education is not solely a service produced within the context of a market; yes, there is a market for education services, but the structure and content of the services provided has broader social implications than reflected in the preferences of individual participants (whether students, professors, hiring firms, etc). And so, as we’ve done here at Madisonian and will continue to do here and elsewhere, we need to articulate and debate the contours, objectives and methods of legal education openly. As Deven highlighted, “The idea of what is the social vision of law schools has permeated many of the posts here.”

Second, diversity in the approaches/strategies pursued within law schools. I thought Nancy Rapoport had a wonderful post on “What kind of faculty would I want in the ideal law school?” Her post highlighted many of the attributes needed to support a diversity of approaches within a law school. What I mean by that is simply that not all faculty need to teach, write, and serve in the same way; in fact, it is probably better if they don’t. Variety in teaching means variety in the emphasis placed on theory, doctrine, analytic skills, professionalism, other skills (e.g., negotiation, drafting, argumentation, etc.), and it also means variety in method, style and presentation. Variety in writing means variety in quantity and quality — by quality, I mean type; of course we all want high quality scholarship. What each school aims for may be different, but the point is simply that there are many different types of high quality legal scholarship–whether theoretical, empirical, doctrinal, practical, comparative, interdisciplinary, some combination, etc.); whether in the written form of law review articles, peer review articles, university press books, casebooks, treatises, dare I say blogs?, etc.; whether presented at symposia, faculty workshops, interdisciplinary conferences, etc. Again, we can seek to rank and prioritize and give credit and various reputational prizes for different variants, and schools probably do and should take different approaches. As Nancy emphasized, engagement with scholarship is essential — how, why, which, in what form, etc. can and should vary within and across schools, I suspect. Variety in service means that faculty can contribute to the life of the school and the community in many different ways that should be respected and encouraged. Again, I could list the ways in which there is and should be variance in service within and across schools. But this post is getting a bit long and probably losing the reader. So I’ll stop and see if that spurs any thoughts.

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In addition, I want to take a moment and thank all involved with this event. I had a simple goal: a round of intellectual rugby about the topic “What Kind of Institution Do We Want A Law School To Be?” The idea was that many people with many views would mix it up and push the limits of what we know and think about legal education. With the help of everyone who posted, commented, and came here to read that has been achieved. The folks here at Madisonian and I thank you for a fun and most satisfying event.

On a personal note, the generosity and commitment to our profession exhibited by all of you sets an example for me as I continue to develop. I offer my personal thanks for that. In addition, I would be remiss if I did not again thank Mike Madison for helping me shape my idea and offering the blog as a space to explore it. I give further thanks to all my Madisonian colleagues for their feedback and support for the event. So although it is not enough, I say thank you here.

Last, there is more to do. I think the mobblog shows that legal education has real challenges ahead, but it is in good hands; hands that want to identify real problems, to gather facts, to develop and apply theory, and to discuss and debate solutions so that we can improve the institution we call law school. I look forward to seeing how we meet the future and the possibility of helping shape it.

Best regards,

Deven Desai

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Put differently law schools may be at a point where the value offered is the training in the law and the ability to fulfill the idea that a law degree is useful in many fields. To achieve this goal, law schools may need to reconfigure the curriculum. We will have to keep the theory as a foundation, but we may need to expand the ways in which teaching and training occurs. As law continues to permeate almost every professional endeavor, the law degree may distinguish one as having the ability to analyze a problem with rigor and strategic insight better than most, to use language better than most in oral, written, and visual contexts, and then to provide and communicate a solution based on multiple inputs including facts, theory, and different stakeholder views. This potential does not suggest that the ability to practice law will not be a core goal.

Rather insofar as the practice of law is shifting and the nature of what is valuable as a professional evolves, law schools may be best placed to produce people who can succeed in the many practices of law and whose training has value outside of pure practice areas. For those who have the potential for excellence if not iconoclastic, disruptive, even radical moves, start from a solid foundation. That foundation has three parts: mastery of the fundamentals of the field and the ability to see where the field may allow for or demand change and a system that provides the opportunity to implement change. There is no guarantee here. No one hands over the result. Rather all the factors must set up the possibility for success.

In short, law schools and the law degree may come to represent a renaissance institution and person: a place where or person who excels in a field and has the ability to work within other fields at a high level.

So law schools face difficult questions right now. As economic factors shift and the value we offer shifts, some will say our moment has past, some will try to hold onto old models, some will say change everything. The right answer will not flow from a simple formula. The most we can do is strive to keep the potential for our ability to reinvent law school alive. That potential requires ensuring that lawyers have the educational foundations they need as society evolves. It demands that legal education recognize that claims of an exact path or an ability to predict the future are suspect. Paths must be open. The system should not squash the ability of law schools to engage in disruptive experiments. Indeed, rather than ranking-driven and other herd-like moves, the norms should shift to allow recognition and reward for innovation and excellence as it pertains to the many different schools and their constituents.

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1. Don’t romanticize the alternative: When one begins to publish in the peer-reviewed world, the whole romantic notion of blind review becomes somewhat tainted — in all of the fields i am familiar with — psychology, economics, business, political sci, history and sociology reviews (and also in the fields i am less familiar with, according to my hard scientist friends) there is still A LOT of noise in the system: because of conferences, networks, ssrn and the like, it is VERY easy to figure out for reviewers who the authors are; there is a lot of tit-for-tat — same folks publishing and editing in the A-journals in their fields. To think that a top name (the Cass Sunstein equivalent in any one of those fields) does not impact the decision of her peers is naïve. And even more so because the double blindness from the author’s side is also often tainted — at times, people can guess pretty easily (or hear about it in the process) who the reviewers are. At least with law review editors, the repeat players problem (which of course has many strengths as well in terms of expertise and knowledge about the field and quality of scholarship).
2. There are in fact quite a bit of law or law related peer-reviewed journal so we are already live in a world of choice and a world of competition.
3. Law reviews themselves do consult quite frequently it seems with faculty advisors on accepting pieces. It is also my understanding that some of the top law reviews, like the Harvard Law Review, do really have blind review process, and their process is a multi-layered, multi-tiered serious on.
4. The law review kids actually offer a lot of good editing after the article has been accepted, often better, and most of the time involving more eyeballs, than those of peer-reviewed journals.
5. I suspect us law professors, like other faculty, would not like Ann’s suggestion to take away the prestige, the wins and losses of the game, of sending out one’s article to journals outside one’s own institution. Our work is intangible enough to not want to give away some passing rewards and signals of success however noisy they are. This is similar to suggesting that we do away with rankings – we should keep rankings, just make them far more meaningful. Remember, type A people strive on competition.
6. There is something really cool about the speed and timeliness in which law reviews make decisions and then publish articles. Peer-review articles often take years upon years to come out, the review process may mean that things are not relevant by the time the article sees the light of day.
7. There is also something cool about law review editors having some productive ignorance. Its ok if they sometimes get things “wrong” – its part of what shakes things up, puts some off ideas on the frontlines and disrupts some of the inner-breeding and self-referential work that at times stales the legal academy.

Bottom-line, the baby water and the baby have some advantages.

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I have probably spent more time thinking about what kind of institution my law school — Notre Dame Law School, a Catholic law school — should be than about what kind of institution “the law school” should be.  This is probably one reason why I welcomed, and was provoked by, Dean John Garvey’s speech – “Institutional Pluralism” — at the 2008 Annual Meeting of the AALS.  (I have not yet found a link to the full remarks, which were published in the March issue of ”aalsnews”, but here is a report on the talk.) 

Dean Garvey said, “My wife and I have sent our children to Catholic colleges because we want them to be able to integrate their faith with their understanding of art, literature, philosophy, politics, and science.  I think there is a place for this kind of comprehensive wisdom in legal education, too.”  I agree. 

Now, this might not be the forum for thinking-out-loud about what a “Catholic law school” should be, what precisely should be its distinguishing features, etc.  In my view, the project of building such a law school — an engaged, open, critical, and distinctively Catholic law school — is not an exercise in nostalgia, reaction, or retrieval.  The project is, in my view, a new one.

It’s also, I think, an exciting and worthy one, and I’m inclined to think that it should be regarded as such by the legal academy generally, not just by co-religionists and the like.   It is not just “not a bad thing”, it is a good thing, that there be distinctive law schools.  Our commitments to diversity need not, and should not, lead us to insist on homogenization at the level of institutions.  Quite the contrary — the same commitments that push us to respect and learn from diversity in many academic settings might also push us — and the AALS, and the ABA — to stay our hand from requiring that each institution look and act in precisely the same way. 

Garvey fleshes out a number of reasons — reasons that I find persuasive — why we might think that institutional pluralism in the academy is a good thing.   It seems to me that we ought not to resist, but instead should welcome, not only law schools that have focused on serving underserved populations, or law schools with a particular strength in a specific subject-matter area (for example, Lewis & Clark in environmental law), or even law schools with a particular animating point-of-view (Law & Economics at George Mason?), but also law schools that are distinctive in being meaningfully animated by a shared — even if contested — religious tradition.

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Broaden:  It’s impossible to think about changes in legal education without also thinking about changes in the legal profession; that point has been made in earlier posts.  The state of the legal profession, however, implicates not only costs, and salaries, and debts, but also effectiveness.  Law schools have a key role to play in ensuring that the profession is populated by good lawyers, effective lawyers, and respected lawyers.  Should we care, therefore, that lawyers as a class are the butts of innumerable jokes?  (Ask yourself:  Are doctors targeted to the same degree?)  At an interdisciplinary academic conference that I attended last weekend, populated by thoughtful colleagues from other disciplines and characterized by lots of challenging analysis, several of the speakers from outside the legal academy prefaced their remarks with comments that translate roughly as, “Since I’m speaking at a law school and in front an audience of lawyers, I’ll speak very slowly and use short words.”  Ugh. 

In other words:  Focusing on Jim’s vision of the core mission of law schools may not be enough.  What’s missing?  Structural reform to the concept of legal education itself — beyond the individual law school — that begins to restore the social role of lawyers that the core mission seeks to implement.  “Law” is both practice as social engineering and intellectual practice; if society respects the former, that’s in part because society understands the latter.  So I’ll disagree modestly with Jim’s premise:  law may not be a “pure” discipline, but it unquestionably has a valuable scholarly dimension.  At the institutional level, it may be right to divorce some or all of that scholarly dimension from law school’s training mission.  There are different ways to imagine this:  Put the scholarly side of law back into the faculty of arts and sciences; if law really is a vehicle for a liberal education, then truly integrate it with the rest of a liberal education.  (And treat legal scholars like scholars of history and economics when it comes to expecting scholarly training and scholarly rigor and productivity.)  Or keep legal scholarship in law schools but divide the program a la medicine or business schools — two years of basic training that results in a JD, then two additional years on a clinical track (as in medicine) or a further academic track (as in medicine or business).  In law schools, those later clinical two years could be constructed out of joint ventures with the practicing bar.  Admission to the bar would follow the second two years.  Also, I like the idea of formalizing the expectation that there should be a curriculum for undergraduates that anticipates legal education — though I wouldn’t call it “pre-law.”  I wouldn’t stop with expecting undergraduate exposure to social sciences; I’d like to see our students know something about biology and chemistry.  Who remembers that once upon a time, the LSAT tested math skills?  I’m no fan of the LSAT, but what did the profession lose, even if only at the margin, when the test changed in the early 1980s, and math disappeared? 

Narrow:  Let’s cash out the core mission with some concrete prescriptions for legal education in the 21st century, beyond my imaginary institutional reforms above (and others that’s I’ve suggested below).  Should at least some law schools abandon their Landgellian curriculum?  Vanderbilt and Harvard, among other schools, are tweaking the first year.  Should schools go further?  (And if some law schools do, which ones are suited to the task?)  What would the law school curriculum look like if we started from scratch?  For an analogous exercise, look at Yale’s new MBA curriculum.  The first year begin with a series of institutional perspectives on the role of law and lawyers, undertaken (B-school style) via cases and in teams.  The second year applies those lessons in disciplinary and cross-disciplinary contexts.   Business in the front; party in the back? 

One of the odd orthodoxies of debates about reforming American legal education is that real legal education occurs during those three key years in law schools, and nowhere else.  We could re-imagine that orthodoxy in ways both small and large.  Small:  The “law center” model could be expanded; instead of most law schools offering continuing education at the margin (and carefully avoiding competition with private CLE providers and with the private bar), how about CLEs keyed to law school reunions?  Every five years, come back to school for a weekend of mini-courses taught by the full-time faculty?  Large:  Collaborate with the state bar and make participation in that sort of thing — as opposed to the junketeering and half-hearted CLE programming that currently satisfies state CLE requirements — a condition of retaining the law license.  Or make the JD like a registered trademark:  Once it issues it issues — but you have to pay maintenance fees in order keep it registered.  In this case, the fees would be meaningful law school-sponsored training.  And make the tuition tax-deductible.

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What kind of institution do we want our law schools to be? Legal educators should strive to translate their knowledge about law into real-world applications and outcomes.

Law is an applied discipline, not a pure science. There are divisions of the ideal university that ponder quantum chromodynamics, universal grammar, and number theory. And then there are divisions that design new devices, teach Spanish to otherwise monolingual Anglophones, and develop new encryption algorithms. Law schools emphatically belong to the latter category.

As in the health sciences, our greatest challenge lies in translating the work of law professors, as teachers and as scholars, into real-world results. Medical schools aspire to perfecting their programs for translational research. Likewise, law schools succeed to the extent that they train skilled social engineers. To me, “social engineering” carries no pejorative connotation. It is the conscious, purposeful, and ultimately noble project of avoiding, resolving, and mitigating disputes and of designing institutions to accomplish goals beyond the reach of individuals. Social engineering is the work of lawyers and allied professionals trained in law.

Let me translate this admittedly florid and abstract thesis into a set of blunt, pragmatic statements about law school management. Law schools have a single mission: we train people to become lawyers or to leverage their legal training into gainful employment in business, government, or education. Our students represent our ultimate product; their accomplishments, our greatest pride.

Students come to us — often with more ambition and raw generalized intelligence than anything resembling a marketable skill — and they have every right to expect a material, measurable return on their investment. As they shoulder tuition in the neighborhood of $40,000 per year and living expenses in communities that are costly precisely because they surround universities, many of those students will graduate with six-figure debt loads. This is to say nothing of debts from undergraduate education, family formation, the ordinary business of life.

For many of those students, legal education as it is priced and delivered today is a disservice. A very significant portion of each year’s new crop of law school graduates will be fortunate to find employment, if at all, in the neighborhood of $40,000 per year in salary. The convergence of high law school tuition rates and low first-year salaries is a sign that law schools need to deliver more on their promises. Mere jobhunting may not pose worries for students at the very best schools or for the very best students at most other schools, and unemployment certainly lies outside the experience of most law professors, but the vast majority of law students pay tuition and forgo at least three years of other opportunities in order to secure jobs that are more rewarding, in intellectual and in financial terms, than those they might otherwise have held.

Employers often report that many law school graduates need three to five years of on-the-job training to become truly effective. In private practice, the turning point is profitability. Law schools must be able to guarantee that their newest graduates will represent leverage, not liabilities.

Today’s legal academy often seems to wage war against itself. On one hand, genuine efforts at reform — including this mobblog — stress improvements in teaching that are consciously designed to improve our graduates’ skills and marketability. Novel approaches to the first year, experiential learning, interdisciplinary education, and capstone courses represent merely some of the ideas that innovative, entrepreneurially inclined schools have begun to explore and even to implement.

At the same time, law schools are also prone to chasing the latest intellectual fads and pouring enormous amounts of money into collateral projects whose connection to the core mission of training lawyers and other legally sophisticated professionals is apparent, if at all, only to the proponents of those projects. We tout these moves in glossy publications aimed not so much at graduates, donors, and prospective employers of our students, but at other law professors. We can, should, and do blame much of this imprudence on the U.S. News and World Report rankings. I suspect, though, that law professors as a class, divorced from the realities facing our students and from our duty to address those realities on their behalf, need some goading to remember that law schools exist not as playgrounds for their faculties, but as training grounds for their students.

The core mission is hard enough to accomplish as it is. The real cost of solid legal education is very substantial, and there are no obvious places to cut costs. Most law schools depend almost entirely on tuition or on some blend of tuition and precarious public support. It is not at all unusual for unrestricted giving to a law school to hover in the neighborhood of one percent of the overall budget. Donors are readily persuaded (provided that law school administrations have not neglected their graduates or, worse, taken active steps to alienate them) to support a wide variety of causes, ranging from physical facilities and scholarships to programs such as moot courts and clinics. The most questionable expenditures by law schools today are often those that have the greatest difficulty securing philanthropic support. The reason is obvious: donors are almost invariably law school graduates who had to work hard for relatively low pay before achieving the financial security that now enables them to be generous. They will support their alma maters, in some cases with extraordinary passion, precisely to the extent they feel that they were able to translate their law school experiences into real-world success.

My depiction of legal education and academic management may not be the most aesthetically pleasing description of the ideal law school. But an old literary saying about translations seems apt. Translations, so conventional wisdom goes, are like lovers. Though the most faithful translations may be plain, the most beautiful translations tend to be unfaithful. Law schools owe their primary allegiance to those whose tuition dollars, taxes, and donations enable the entire project of legal education. We owe these students, taxpayers, and benefactors some measure of fidelity in translation.

Cross-posted at MoneyLaw.

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One idea might lurk within these views: is the undergraduate system failing such that many law students have aptitude but did not receive the training they may have received in years past?

Now, many say all law professors think law students cannot think or write well. Given that law school is supposed to push a student’s abilities to think and write to a higher level that view makes some sense. One would expect a certain amount of “we need to improve what you do” in the air. (This view can be constructive or condescending. Constructive is the way that the view makes sense). Yet, in talking with many people at a range of schools, it seems that the move to rote learning and regurgitation has produced a generation that is less armed for law school or any situation that requires independent thought and analysis. As such rather than teaching how to write a legal argument and analyze a case, many law professors may have to accomplish that task while also pointing to ways for a student to improve more fundamental skills. I could be dead wrong here. So, feedback on whether others have encountered this possibility is most welcome.

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Dan Filler’s post on single-sex education flagged an important and otherwise under-discussed theme:  The “who” of legal education.  Who applies, who gets admitted, who attends, and who graduates?  Who teaches, and who administers?

These questions overlap with the theme of my “Too Many Law Schools?” post, which was prompted by reports describing the distribution of salaries among practicing lawyers:  a relatively small handful of salary winners, and a much larger pool of debt-burdened strugglers.  I haven’t had time to go surfing through the data, but I wouldn’t be surprised to learn that women and non-white lawyers fall disproportionately into the latter group.

So I take it as given that race and gender questions should be on the table when we talk about the future of legal education.  That’s the easy part.  The difficult part, of course, is figuring out how to break those questions apart, think about them, and act on them in useful ways.  Dan’s post floated one provocative idea.  Here’s a second, which admittedly is not quite so provocative, and which is certainly no panacea: 

In law school admissions, tell applicants that they can choose whether or not to submit their LSAT scores.  

Why? 

Most of the reasons will be obvious:  First, LSAT scores predict nothing that the legal profession truly cares about.  They predict academic success in law school, and nothing more.  Second, in part because of the prominence of US News rankings of law schools, at least some law schools have adopted rigid LSAT cutoffs:  To preserve the LSAT range that fuels the US News system, these schools simply will not admit a student whose LSAT score falls beneath a certain line (this practice undercuts criticism of “test optional” admissions strategies as marketing fluff).  Third, male and white and Asian American test takers tend to outperform all other groups on the LSAT.

One reason may be less obvious.  The homogeneity of legal education follows partly from inertia and partly from fear (fear of rankings impact, fear of accreditors, and fear of applicant and alumni response).  Major change is all but impossible in the current climate.  Fear is a constant, and making the LSAT optional is a minor change.  But that minor change may permit a school to think more deliberately about its institutional identity.  If we want more heterogeneity at the institutional level, look for ways to build heterogeneity at the individual level.  What people are we training?

Standardized admissions tests were developed decades ago on the premise that they would make the university admissions process more meritocratic.  Look around the law school classroom, then look around the legal profession.  Have they succeeded?

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