In terms of public relations, legal education has had a terrible couple of years. The anti-law school blogging movement has grown into a forceful genre, with recent grads and tenured lawprofs making a strong case against law school. Once we add in the articles from N.Y. Times reporter David Segal and several class action lawsuits filed against law schools (alleging consumer deception), we have a deafening crescendo of anti law school sentiment, that resonates both emotionally and logically. Exacerbating legal education’s PR problems are its exponential tuition, fueled by the unchecked availability of student loan funds, a scarcity of decently-paying law jobs, and the ABA’s inability to support innovation in the face of structural changes in the profession.
To fight back in this PR battle, some law school leaders continue to extol the enduring value of a law degree, even if graduates are unable to find employment in the legal field. Others show little interest in the debate, suggesting that the complaints amount to unfounded whining. One law school has sued its anonymous blogger critics, alleging defamation and interference with their business relations (relations with potential students).
Law school is bad, or it is good. The debate has devolved into a Manichean dichotomy. Dichotomies are, unfortunately, a hallmark rhetorical device that we see in everything from politics to advertising. The dichotomous approach lends itself to ignoring or de-emphasizing the merits of the other side’s argument. When law schools employ the dichotomous approach in defending themselves against this deluge of criticism, there is a loss of credibility. The PR problem stems in part from the perception the law schools have not stayed true to the ideals of professional empathy, ethical debate, and logical advocacy.
Credibility, or cred, refers to a concept of authentic ethos, of being true to one’s ideals. In the independent music world, credibility or “cred” is the standard for any respectable act. A lack of cred relegates you to the contemptible category of poser. So the question is – in this environment, can law schools, particularly non-elite law schools, gain back their cred?
If I were giving public relations advice to law schools in this embattled environment, my advice would be to ditch the dichotomous approach and employ a Rogerian approach to the problem. Rogerian rhetoric, named after pioneering psychotherapist Carl R. Rogers, holds that an advocate should begin by stating his/her opponent’s argument “as accurately, completely, and sensitively, as [she/he] can, taking care not to judge it.” The advocate then explores areas of agreement with the other side’s position, and then, moves on with his/her counter position. Rogerian rhetoric is appealing because it is grounded in a therapeutic vision of ethical and truthful communication. This style of rhetoric is not about staking one’s place in a two-sided tug-of-war, but depends on the advocate’s ability to build up credibility and then move on to explore different contexts.
By listening and giving credence to the many legitimate complaints about legal education, law schools could reestablish credibility with younger members of the profession or aspiring members of the profession, and then seek to persuade this audience that there is still some value left in an American JD degree. Paul Horwitz recently wrote about taking a similar approach on the first day of his legal ethics class. By starting his class with a discussion of the bleak legal job market and criticisms of law schools for dishonestly representing their employment statistics, the class was able to move forward and consider ethical issues in the legal profession. In this way, Professor Horwitz was able to establish a foundation of credibility from which to consider legal ethics. I think, if law schools want to remedy their reputational issues, they would be wise to consider this approach.
It goes without saying that law schools ought to commit to recognizing and solving their deeper problems (cost, curriculum, and pedagogical culture). But these structural problems are bounded by institutional constraints such as the American Bar Association’s regulatory scheme and all of higher education’s dependence on free-flowing student loans, two powerful forces that dim the prospects for a large-scale solution.
Thus, the ability to understand and appreciate the daunting challenges faced by young and soon-to-be law graduates would be a decent first step for improving the reputation of law schools. This means that professors must appreciate the vast difference between our own experiences as elite legal professionals during the “golden age” of the large law firm and what many of our students now face in starting their careers. In order to effectively argue that legal education, even an education from a non-elite school, remains a valuable investment, the advocate must begin with a full and lucid exposition of law school’s many negatives and risks. For legal education, Rogerian rhetoric may be the only ethical way to save its cred. In my next blog post, I’ll talk about what a Rogerian argument might look like in this context, focusing on the shifting reasons one might choose to attend law school.