For many law students there are too few jobs available that pay enough to cover the cost of law school. There are also too few lawyers who are willing to work for what most Americans can afford to pay.
Put these two facts together, and it is clear that the problem is not that we have too many lawyers. We don’t have enough lawyers who charge modest fees. We also don’t have enough law schools that lawyers who will earn modest fees can afford to go to.
The one-size fits all approach to legal education that is reinforced by ABA accreditation standards – and to a lesser extent by other organizations such as the AALS – perpetuates this problem. The system works very well for clients who can afford to pay the high fees of heavily indebted lawyers. It does not work so well for everyone else.
The ABA can instead expand access to legal services by encouraging some law schools to develop a different business model that provides a high quality legal education at a lower cost. Clients’ needs and resources differ, lawyers differ and law schools should differ as well.
There are many areas where there should be more flexibility in ABA accreditation standards. I will discuss here only one of them: the faculty, which is for many law schools the single largest expense. The principal role of the law professor in the school is to teach. Part of being a good law teacher is active participation in the legal profession, whether as a scholar, as a lawyer or a judge, as a government official or in some other capacity. I have not seen credible evidence, however, that one of these categories of professional endeavors outside the classroom makes for better law teachers than the others. They each improve our teaching in different ways.
One of these endeavors outside the classroom – legal scholarship – must be subsidized by the law school. Unlike medical research and some other areas of scientific work, there is very little outside funding for legal research. Law schools have to pick up the slack by paying professors more. In return these professors agree to limit their outside practice of law (no more than one day a week in most law schools). A professor’s substantial commitment to legal research may even require absence from the classroom some semesters, which requires the law school to hire more professors to teach the courses. And then there are the other expenses that go along with research – visiting speakers, travel, research assistants, technology, etc.
Other professional endeavors outside the classroom – practicing law, consulting, judicial or government employment – are different.
Legal research is very important to our profession, but it is expensive and it is paid for almost entirely by law schools. Many law schools can afford to have most of their faculty members engaged in research. These schools will charge a substantial tuition (a few have large endowments and/or annual giving as well). Graduates of these schools will need jobs that pay well. Some of these graduates will represent the poor and the middle class, but many won’t.
But not all law schools need to have professors who engage in scholarly research. Some law schools should rely principally on faculty whose professional endeavors outside of the classroom involve private practice, judging or government work. Some law schools should split their faculty roughly fifty-fifty between legal research and law practice.
Most important, this issue, and others in legal education, should be decided by the schools themselves, and the students who choose to attend those schools. States through bar examinations and other means can determine if those students are fit to practice law. Regulating law schools is a very indirect way of accomplishing this end. Regulation is also counterproductive if the regulation increases costs so much that legal education and services of lawyers are limited to the top echelons of society.