Since law schools vary significantly in terms of endowments and current approaches to curriculum, there will likely not be one response from the legal education community to the new economic realities facing the profession. I write, therefore, to address the impact I see on the segment of law schools about which I know the most—those predominantly tuition dependent schools, whose curriculum focuses on the practice of law and who prepare a significant percentage of their graduates for small and mid-sized firm practice. These schools will face some of the most difficult choices as we move to a future with a tighter job market, increasing debt loads (or the need to significantly cut tuition to make legal education a wise investment) and the commitment to meet the continuing problem of lack of access to lawyers for middle class individuals.
A number of the types of schools described above have responded relatively quickly to the Carnegie Report and the profession’s stated need to equip students with practice skills. Some of the approaches employed have been increased clinical opportunities, development of simulated practice course-- usually taught in small sections, and intensive upper-level writing programs, with most focused on practice, including transactional practice. The common feature in these innovations is that they tend to be resource intensive.
For example, in my school, we instituted the Daniel Webster Scholar Program to address these issues and to create what we, and the New Hampshire Supreme Court, believe to be a better alternative to the traditional bar exam. This program, which now serves 20 students, substitutes a two-year, intensive curriculum populated with many small, intensive seminars and practice-based projects for the Bar exam. The projects, which are compiled in practice portfolios and reviewed on an ongoing basis by members of our Bar Overseers, comprise a two- year bar exam. As one might guess, this is not an inexpensive program. Thus, despite its demonstrated effectiveness, the challenge of expanding the pedagogical approaches, if not the full program, to our student population is significant.
Similarly, we have implemented a first-year, second-semester simulation course, called Fundamental of Law Practice, which is taught in small sections with teaching assistants hired to act as the clients, witnesses and other players in the cases. The simulations need to be changed each year by the program director (a tenured faculty member), and the program needs to be fully staffed with adjunct and clinical faculty. Again, this is an expensive program, especially when compared to the model of a single teacher and a full classroom.
These courses, however, have helped turn out students who are trained in the analytical skills, ethical judgment and experience to be valuable to those firms without the resources to engage in full training programs. Our experience in New Hampshire is that these firms also provide a significant percentage of the pro bono services in the state.
If the downturn in legal jobs leads to a sustained reduction in applications to law schools, as seems to be the trend now, rural, tuition dependent schools will need to reduce class size to insure quality.
The challenge will be to reduce the cost of legal education, while delivering the types of programs and courses that will enable graduates to be useful to the public. It would be a shame if the administration of schools that have often been leaders in innovative education were impelled to return to a mode of teaching that may not serve the needs of the community or the profession.
Having watched some of the steps being considered by the administrations of several of these schools, I remain guardedly optimistic that if we remain committed to meeting the key legal needs of the communities we serve and adopt flexible and creative business models, including the use of technology where appropriate, rather than reflexively reaching for the older, cheaper model of legal education, we can weather the storm and emerge leaner, more efficient and more committed to the profession and the public.