February 26, 2018

Is legal education in or nearing a crisis?

Since the Great Recession of a few years ago, legal education has come under intense scrutiny, with declining student enrollment, rising student debt, a decreasing market for new law jobs and more schools falling short of American Bar Association accreditation standards.

Does a crisis exist? A panel of research scholars and legal education leaders tackled that question at the ABA Midyear Meeting at a session titled, “The Perennial (and Stubborn) Challenge of Cost, Affordability and Access in Legal Education: Has it Finally Hit the Fan?”

Barry Currier, ABA managing director of accreditation and legal education, doesn’t think so. Offering a personal view, he said legal education blogs and other pundits have it wrong. “Never has legal education been as strong as it is,” said Currier, the top staff member for the Council of the Section of Legal Education and Admissions to the Bar, designated by the U.S. Department of Education as the national accreditor of law schools.

The panel provided a mix of historical perspective of the growth of law schools since World War II and an exchange of provocative ideas, such as a two-year law school program with clinical externships. They agreed the goal is to craft a legal education program to better meet the demands of the profession as well as the needs of a nation, such as more access to justice.

The program, one of several sponsored by the American Bar Foundation, ran an unusual 2 hours and 45 minutes in order to take a deep dive into the issues and challenges facing legal education today.

Stephen Daniels, ABF senior research professor who has extensively studied these issues, tried to answer the question posed by the title in these words: “The basic problem is schools need students and they need money to operate. … It might be hitting the fan but hopefully not yet.”

Daniels drew an historical outline of how the “business model” of legal education emerged since World War II and said his research showed that the “roller-coaster” of law school enrollment directly stemmed from the availability of student loans. He noted that the environment is far from static and that law schools are trying a lot of different initiatives to deal with current challenges, but there is no single “magic” solution.

Today, about 37,000 students are in their first year of approved ABA law schools, with about 110,000 students overall. This is down from about 44,000 1L students in 2010.

The jump in the cost of higher education that accelerated several years ago is a result, in part, of the availability of federal student loans for professional-level education. As Currier said, a school could charge $200,000 for tuition and estimate $50,000 in living expenses and the government would say, “Where do I send the check?”

“We all are depending on student loan programs and those programs at this point are unregulated and uncapped” in terms of amounts of money, Currier observed, suggesting changes need to be made.

There was also a consensus that the nation’s 200-plus accredited ABA law schools have also played to the ratings game, principally the law school rankings of U.S. News & World Report. “The increase in tuition costs is beyond belief,” said panelist Judith Wegner, a retired dean and law professor at the University of North Carolina School of Law.” “I blame U.S. News.”

Currier agreed, saying the magazine, which ranks law schools annually “has this stranglehold” on law schools and the ratings have an “outsized and perverse effect” that influences “what law schools do and how they behave.”

Christopher J. Ryan, a doctoral fellow at the American Bar Foundation who has studied the economics of legal education, observed the “single greatest expenditure” at a law school is faculty and that cost savings could be realized by depending more on adjunct professors. The impact of discounting tuition to attract more students and student loans also plays a significant factor.

Wegner made several suggestions that other panelists and those in attendance embraced in concept. She was one of five authors of a Carnegie Foundation report on educating lawyers in 2007, which suggested numerous changes to the legal education format. She observed that law schools do an excellent job to “advance critical thinking” but fall short on teaching the practice of law as well as conveying “professional identity.”

Specifically, she suggests reforming the bar exam, perhaps adopting a “baby bar” to test critical-thinking skills after the first year like the testing done in medical education. This, she explained, would “tell students where they stand and tell law schools what to do about that.”

Second, state licensing agencies should develop a system of legal professionals who are licensed to assist clients but not in all legal fields, similar to the status of a nurse practitioner, she said. This would give students with a “real thirst for justice” to practice in the legal field without accumulating major debt and allow others who want to specialize in the law to do so. The state of Washington now has a program and several other jurisdictions are exploring this approach.

Rachel Van Cleave, former dean and professor of law at Golden Gate University School of Law in San Francisco, moderated the program.