The sick elephant in the room

Jim Milles

I am grateful to Renee for the opportunity to contribute to this discussion with such a distinguished group of law professors, and to work through some of the nagging concerns I have been feeling as I prepare for spring classes.

To me, it is undeniable that legal education is in a crisis; the only real dispute is over its scope and how to respond. This crisis is a complex one with multiple dimensions. One of the elements of this crisis is that the various stakeholders--among them law students, big law firms, law professors, law school deans, and client/consumers--have approached it from multiple directions, asking very different questions, and proposing very different, mutually contradictory, solutions.

It is routine to illustrate complex problems with the parable of the blind men and the elephant, but the typical function of this parable is to demonstrate that each party has a partial view, and that by working together a more complete view would be possible. I picture the current crisis in legal education a little differently, with a greater sense of urgency, and lament the effort wasted in arguments that miss crucial points. Imagine several blind physicians called in to examine one, very sick elephant. One physician examines the ear of the elephant and pronounces “This animal has an infected ear. It must be treated immediately! Medication and rest are essential.” Another physician feels the side and proclaims “This animal is overweight. It must immediately begin exercising more.” A third palpates the leg and declares “This animal has muscular atrophy. It needs slow and careful physical therapy.” Then the three physicians proceed to ignore the elephant and argue among themselves over which medical condition is worst and which treatment must be given priority.

Similarly, current critiques of legal education tend to identify at least three areas of dysfunction. They are not completely separable problems, but they have much less in common than is usually presumed. Discussions that confuse these problems are likely to be unproductive and generate pointless arguments.

(1) Lawyers in large law firms complain that law school fails to prepare students to practice law. Many law students fear that the lawyers are right. One response is to call for various reforms such as increased clinical and practical skills training. Defenders of legal education argue that critics are repeating old criticisms and are unaware of how law school has changed. They point out that law schools have been offering such skills training for years, and that expanding this kind of education is likely to be even more expensive, requiring smaller classes and more faculty with expertise that can only be gained through long years of practice. Others note that, for generations, law firms preferred to do their own training; elite schools served largely to select elite law students for large law firm employers. Now that large firm clients are less willing to pay inflated fees for first-year associates to do document review and bring in money for the partners, law firms are less willing to invest in the training that they have traditionally done.

(2) Law students and recent graduates complain that law school tuition debt is out of control, and fear that they will never get law jobs that will enable them to pay off their debt, especially in view of what many believe is a long-term restructuring of the legal profession. Bill Henderson and Rachel Zahorsky, among others, argue that current law school tuition levels are unsustainable, and predict an eventual law school crash.

(3) A third well-known problem, but one that is less often tied to the current legal education crisis, is the widespread dissatisfaction among lawyers and the prevalence of depression, substance abuse, and other problems.

Law professors and deans have been slow to face up to their ethical responsibilities in the face of these problems.

(1) My sense is that both defenders and critics of the current methods of legal education make valid points, but that the various stakeholders are also, and inevitably, biased by their own interests. Big law firms complain that law schools don’t teach enough of the skills that their corporate clients demand. Clinical faculty argue for more clinical opportunities for students and higher status for clinicians. Writing and research faculty argue that the most crucial skill is the legal analysis that they uniquely teach. Faculty scholars argue for a broader conception of “practice-ready” skills that includes a theoretical grounding that prepares students for a lengthy career.

What makes finding solutions difficult is that all of these arguments are correct. Few law schools have undertaken the hard, self-critical work to address what is sometimes known in the law library profession as “The Carl Yirka question”: “What should law libraries [or law schools] stop doing in order to address higher priority initiatives?” Few law schools can even answer coherently the most basic question: “Why are we here?” One does not have to be an anti-intellectual to question whether law schools properly balance the demands of scholarship and teaching. Even adopting a more “consumer-oriented” attitude toward legal education begs the question (and I am using that phrase correctly here): who is the consumer of legal education--is it the student, who almost inevitably graduates without the skills necessary to open a solo or small firm practice, or the large law firms, who consume the lawyer-shaped widgets we produce, and complain if they do not meet specifications? I am unwilling to adopt  a solution that grants too  much to the instrumental demands of big law, and treats law students less as autonomous individuals and more as products.

(2) As Cassandra Robertson (here) and others in this forum have noted, It is likely that law schools will experience contraction. Some will close; many will experience shrinking admissions. So far, however, we law professors have been largely unscathed. Perhaps our travel funds have been somewhat reduced; perhaps we don’t have quite the freedom we’re accustomed to with regard to our favorite boutique seminars. At the same time, some law schools are considering reducing tenured faculty teaching loads from 12 to 9 credit hours per year, while students ask where their tuition is going. And if law schools will shrink, we should question whether it is responsible to continue hiring tenure-track faculty as though all is business as usual. Law schools are making lifetime commitments to increasing faculty numbers when the future is too uncertain to predict.

I have heard little discussion of the likely impact of law school restructuring on our students. Calls for reform from within the law schools rarely have reducing costs among their primary goals. At the same time, it seems clear that improvements in teaching methods and curricula will ultimately be of little value if our new and improved law graduates are still unable to find jobs.

(3) Finally, Paul Horwitz has written a series of excellent blog posts on Teaching Legal Ethics in a Legal Recession (and here and here). Many of us who teach professional responsibility attempt to prepare students for the inevitable stresses of practice. Are we doing them a disservice? Could we--should we--do more to not only inform students of the risks, but help them develop life skills to become happy, healthy, and successful lawyers?

For law schools whose tuition remains relatively low, a focus on small firms and solo practice may be increasingly viable. It is sometimes glibly suggested that law graduates unable to find big firm jobs could simply hang up a shingle, but doing so without the necessary skills is a recipe for disaster. Some schools could choose to offer a specialized set of third-year courses designed to give students the skills they would need to open a solo practice. Such courses would be similar to the new third-year curriculum at Washington & Lee, but would include law office management and ethics with a focus on the sorts of issues that tend to plague solo and small firm lawyers like financing, misappropriation of client funds, neglect of client matters, and stress management. No single solution will work for every student or every law school. For those law schools below the top 25 or so, individualized responses will be needed; not every law school will survive.

Comments

[Fred Smith]

A fourth problem is the saturation of the job market. There are plenty of skilled and experienced solos already out there. Even if law schools were to produce more skilled graduates, they would still be forced to compete for a limited number of paying clients.

[Michael Downey]

Can we expect law school curriculum to change if we do not change the method for selecting professors from among professorial candidates?

In my (admittedly limited) experience, law school faculty have a significant if not a controlling voice in deciding which candidates receive offers. If this is the case, and as numbers suggest presently many law school faculty are dominated by Ph.D.-J.D.s and others who favor abstract thinking and lofty, academic writing over lengthy practice experience and practical writing, aren't they going to simply perpetuate the hiring of people like themselves? Won't graduates of top schools, with top clerkships and lots of publications, believe that people of their ilk are more qualified than those with resumes light on scholarship but heavy on practice experience?

Thus, if law school faculty are going to change, won't we first have to make changes to who is choosing law school faculty?

[twitter.com/jimmilles]

The degree of control exercised by faculty seems to vary. At some schools, at least, the dean may have a lot of leeway with respect to bargaining, and may quietly choose to work harder to get some candidates than others.