Has the law school model of the 1870s finally run its course?
First published: September 30, 2024. Posted here for archival purposes.
“Everything in Between” is about the systems, institutions, and practices that people build, “things” of a sort that sit in between us, between groups of us, between “us” and “them,” and between us and other systems and institutions that seem terribly far away: “the market,” “the state,” the universe, and so on. Once a week, usually on a Monday, I’ll have something new.
Last week’s newsletter introduced a theme: the past, present, and future of law schools, partly as interesting, useful, and important institutions in their own rights and partly as case studies that may prefigure later and larger explorations of higher education full stop. I’ve got a full essay on the topic that’s out there for anyone to wants to read all the way to the end (for now). Meanwhile, almost as if on cue, legal media are shocked (shocked!) to learn that a law school in the nation’s capital has been losing money, hand over first, and its overseers want all of the problems to go away very, very soon.
I know absolutely nothing about that school other than what I read online, but call me far from surprised, for reasons that will become clear. That school is far from an outlier; it is closer to the norm. May those reasons become clear to readers here at “Everything in Between.” Have patience, however. I’m sharing the long story in one relatively short piece at a time.
Before diving in, a bit of context:
I’m not a catastrophist. I’m also not a futurist. I’m a pragmatist, with something of an idealistic streak. I’m not inclined to throw bricks at greedy, narcissistic administrators. I’m inclined to look at systems and structures and to understand them so that they can be improved – or replaced, or discarded.
I learned as a law student that understanding the financial logic of an organization is key to understanding the character of one’s own professional opportunity within it. I spent nearly 10 years in private law firms, have served as a full-time academic lawyer for 25 years, participated in a half-dozen searches as a finalist for law school deanships, and spent a dozen years in senior volunteer leadership at my Ivy League alma mater. Much of what follows is based on my own observations as well as on years’ worth of conversations with present and former law deans, other academic leaders, senior practitioners, entrepreneurs, philanthropists, and other professionals.
None is based on inside or confidential information. There is a research-based foundation for all of it (I’ll get to sources at the end of the series), but in the spirit of Yogi Berra, I’ve observed a lot just by watching. Often, the data is right in front of us.
With that out of the way, here we go.
First, the end.
The big takeaway
Financial stresses in legal education today are systemic and longstanding, not merely local and recent. Local fixes can’t solve the system’s problems; it’s not possible for a particular law school to map a pathway to sustainability simply by figuring out how to balance its budget. Both individual institutions and the educational sector as a whole confront questions about priorities and resource allocation that they have deferred for a very long time.
Why? We are witnessing structural change, not only incremental evolution, and not only a financial crisis of the moment. Law schools are at the end of what I call “peak legal education” and “peak legal profession,” both in terms of professional opportunity for law graduates and for law faculty and also in terms of the supply of financial resources for universities and law schools.
Professional worlds for lawyers and legal institutions (law firms, law departments, NGOs, courts and other dispute resolution systems) are changing rapidly and dramatically in some ways and slowly and tectonically in other ways, and those changes are feeding back into the demand for legal training. Elite schools mostly continue to thrive. Schools in the mid-range and below mostly are being challenged to justify their existence, including both curricular and research programs.
Should we be worried about what that portends? Legal futurists are guardedly optimistic about the future of law, lawyers, lawyering, and justice, looking at a (roughly) 10-year time horizon and looking mostly at big moves by private legal services providers (firms and LegalTech providers). But they are also relentlessly pessimistic about the adaptive capacity of current educational, judicial, and regulatory (lawyer licensing and certification) systems. Building a new set of law-themed institutions, fit for 21st century purposes, will be difficult and, in all likelihood, painful – if it can be done.
What follows
I start with an abbreviated history of US law schools focusing primarily on programmatic considerations and on supply and demand questions. How did we get here, institutionally speaking, and how does history constrain the path forward? Much
of this story foregrounds the role of prestige and status in building the modern edifice of legal education.
That history will occupy more than one of these newsletters. In its wake, I pivot from history to a predominantly forward-looking, brief summary of the economics of US law schools, with an eye to the economics of universities generally. That will focus narrowly but critically on the second of the two pillars of institutional formation and change: after prestige, there is money.
All of it is simplistic and unnuanced. Undoubtedly many readers will be tempted to think, “but that doesn’t describe my [or our] law school.” That’s a justified reaction in almost all cases; local conditions vary a lot, and below I’ve addressed some of their key dimensions. But the point here is to describe the core of the basic model that defines essentially all law schools today, the framework from which all local variations depart – often, only modestly. That’s the reason for the lack of nuance. My central and simple observation is that regardless of idiosyncratic details for specific schools, the current and future state of any US law school – and thus, all of US legal education – is determined to a large extent, though never entirely, in the context of these two, intersecting narratives. And because of the contemporary relevance of historical conditions, on the whole the summaries below are composed in the present tense, rather than in the past tense
A history of US legal education
The takeaways
- Systems change. Models change. They always have. There is no longstanding institutional tradition of what legal education “is” or “should be.” There is no true “traditional” model of legal education that any current law school might aspire to, and no true “balanced” or “secure” program that assures that incoming students are always properly trained to begin professional careers.
- Systems both drive and anchor change. Whatever ails law schools today, it is not the product of errors and omissions during the last 5 years, or 10 years, or 15 years. There are only history and systems to go with individual actors. Law schools are parts of systems. In those systems, there are internal drivers of legal education supply (faculty, universities) and outside drivers of legal education demand (employers in markets).
- In evaluating and designing systems, distinguish goals and outputs (lawyers with positive effects in society) from methods and inputs (curricula, pedagogy, bar preparation and passage, accreditation and licensure). For both, there are choices: choices to persist in the status quo, to adapt in evolutionary ways, or to make larger, structural changes. There are choices as to means (admitting students, building a curriculum and a faculty, paying for the program) and as to ends (graduates beginning careers, successfully helping clients and communities, building stable careers, advancing interests in justice or the rule of law).
A beginning: the economic and institutional settlement from 1870 to the 1970s
It begins with Harvard. Christopher Columbus Langdell and Harvard Law School (HLS) innovate the model for what becomes the universal mode of US legal education: law as a graduate degree taught in an organizationally separate law school, staffed by full-time “permanent” (that is, tenured and tenure-stream) faculty. An undergraduate degree is required for incoming students, and “the case” is established as the core unit of teaching and scholarly analysis, the key input into “the case method” as an epistemological model for “law.” Between 1870 and the early 1920s, contests over competing models of legal education are fought locally, in the American Bar
Association (ABA), and the Association of American Law Schools (AALS); the Harvard model wins out. Partly, the reasons are exclusionary; the bar prioritizes a white, male, Protestant demographic. Partly, the reasons are inclusionary; Harvard is perceived to be the highest status, most elite university in the US, if not the world. To operate a law school on the Harvard model is to partake of some of Harvard’s ambition and intellectual distinction. Essentially all US law schools now follow the HLS template. To adapt and repeat a well-worn scholarly phrase, we are all Langdellians now.
Most analysis and criticism of the Langdellian model has focused, for decades, on its conceptual content. Its intellectual and pedagogical “infrastructures” are simultaneously fixed (unchanging) and fluid, in that they have been married, over time, to various intellectual fashions: Legal Realism. Law and Economics. Critical Legal Studies. And more.
Here, I focus instead on its original organizational and financial logics, which survive well into the 20th century.
- The fixed costs of the Harvard model are high; its variable costs are low. The model settles its fixed costs premise based mostly on compensation for full-time faculty, who are recruited largely from the ranks of would-be (and presumptively highly compensated) private lawyers; faculty compensation (and compensation of all types) dominates the budget of the Harvard model law school. ABA accreditation requirements and AALS membership rules lock in those fixed costs. During the 1910s and 1920s, they squeeze out non-HLS-style schools that operate using lower fixed costs and that serve women and minorities. Those older YMCA / Downtown / night / distance / non-HLS-style schools shrink substantially in number and size or disappear entirely.
- Despite the modern reputation of law schools among many practitioners and judges as havens for theory and scholarship detached from day-to-day law practice, from an economic standpoint the Harvard model anchors legal education in a teaching-first, “trade school” posture. Even at Harvard itself, substantive expectations as to faculty scholarship are modest, in terms of quality, quantity, and faculty time.
- The explanation for the teaching-first posture lies simply in the fact that Harvard-style education operates as a “mass production” or “mass education” system supplying initiated but unfinished “raw” product to the practicing bar. The “mass education” LLB/JD production model has a handful of key, common elements: single professors teaching large classes, an emphasis on analytic training to the exclusion of all else, and few exams or other assessments. Private law firms, as the primary market for Harvard-style graduates, build training systems inside the emerging Cravath model of law practice to “finish” HLS-style graduates.
- Faculty “research” and “scholarship” in the Harvard model is heavily doctrinal and narrow, to the extent that research and scholarly expectations exist at all. This does not differentiate the law faculty substantially from other faculties; faculty research and scholarly expectations across the university are still in formation.
- Licensure of practitioners follows the Harvard model. The mass education model gets baked into bar exams administered by state authorities led by members of the private bar, which adopt HLS-style assessments.
- The university pays; the law school is not self-supporting. The HLS model is financially fragile, in that it depends on tuition and sustained student enrollment. Harvard itself initiated the Langdellian system long before Harvard University started to grow a substantial university-wide endowment, and even when Harvard’s endowment swelled, the university rarely directed fundraising into its law school at the same rate that it supported other Harvard units. Well into the 1950s, even HLS didn’t cover its costs. And Harvard’s endowment dramatically outpaced that of all other universities well into the 1980s, both in size and growth rate. Universities emulate HLS at the cost of significant financial precarity.
Next: The HLS model and the 20th century university, and more.
Stay tuned.