AustLII Home | Databases | WorldLII | Search | Feedback

Legal Education Digest

Legal Education Digest
You are here:  AustLII >> Databases >> Legal Education Digest >> 2006 >> [2006] LegEdDig 7

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Matasar, R A --- "The Rise and Fall of American Legal Education" [2006] LegEdDig 7; (2006) 14(3) Legal Education Digest 9

The Rise and Fall of American Legal Education

R A Matasar

[2006] LegEdDig 7; (2006) 14(3) Legal Education Digest 9

49 New York L Sch L Rev, 2004, pp 465–504

Contrary to conventional wisdom, law students have many reasons to attend law school other than the obvious one of becoming a lawyer. Some see law school as a delaying tactic. They do not know what they want to do. They have graduated from undergraduate school with a major that has not led to employment. Others see law school as a means to an end. Other students want to go into business, but think a law degree provides more value than a business degree. Other students, especially in part-time programs, need the law school credential to advance in their current jobs in finance, education, business or government.

Reviewing the credentials of the faculty of most law schools underscores the enormous intellectual diversity of the legal academy. Law school is now the product of the multiple disciplines that drive law faculties. Consequently, the study of law is complex and varied. Perhaps the most disturbing mismatch between public perceptions about law schools and reality is that three years of law school may not adequately prepare a student to be a lawyer. For some students, law school neither prepares them to be a lawyer nor prepares them to hurdle the entry barrier to joining the profession.

For many years, these shortcomings were not problematic. Schools assumed that students would take bar review courses after graduation to fill their substantive knowledge gaps so that they could pass the bar examination. The schools also assumed that, once students become lawyers, their employers would fill remaining knowledge gaps so that the graduates would become highly competent lawyers.

Unfortunately, in recent years, the division of responsibility between school, the profession, and bar preparation has broken down. Many students never gain a mentor in practice. Instead, they must be ‘practice ready’ after graduation. In turn, this has driven law schools into much more specific skills training in lawyering disciplines, including legal writing and research, negotiation, mediation, counselling, trial skills, business planning, and the like. These changes have crammed more into legal education than ever before, thereby increasing educational costs by forcing schools to hire experts in non-traditional academic subjects.

There are several tiers of law schools, stratified by price and prestige. Unlike many consumer goods, however, price and prestige do not run together. There are inexpensive schools that have high rankings and expensive schools that have low ranking, with the price difference often accounted for by state subsidies to higher education. For years, the law school market has been protected from fears that they are pricing their product out of reach for most students. These financial pressures may soon challenge the capacity of law schools to continue to raise their prices.

Common sense suggests that law schools would be evaluated on how well their graduates perform as lawyers — a clear corollary to the widely held belief that law schools train lawyers. Common sense aside, it is clear that neither students, faculty, employers nor the public look to the actual performance of a school’s graduates in assessing that school’s quality. Students sometimes ask about who has attended a school and how well they have done, but more often look only to a school’s reputation. Faculty rarely look to the quality of a school’s graduates.

Although employers sometimes rely on the success of a given school’s graduates within their organisation in deciding who to hire, they often rely instead on short-hand formulae in deciding which students to interview — a function of the rank of the school attended and class rank of the student. Ranking systems and reputation surveys do not acquire information about the success of a law school’s graduates, except for their initial jobs, which may or may not measure lawyering skills.

Simply put, the law school market rarely asks whether the careers that graduates obtain bear a relationship to what they learn in school. Accordingly, schools engage in a quest for enhanced reputation as a means to improving their apparent quality. The theory then goes that if reputation rises, the quality of the school’s inputs will rise. The consequence of this theory, however, is to drive schools to expend ever higher amounts to generate resources to enhance their reputations — better facilities, higher scholarships to buy better students, higher-priced faculty who bring fame to the school, more esoteric, but visible programs, famous speakers — whatever might gain an edge in reputation. In evaluating law schools, many students obsess about prestige and rankings. Although there may be little direct relationship between a school’s prestige or ranking and the quality of the education it offers, the preoccupation with rankings is rational at the extremes because the market does confer advantages on students at the most prestigious schools and imposes disadvantages for those at the bottom of the hierarchy.

Only some faculty members define themselves primarily as lawyers rather than legal academics. The most important part of their job is to produce scholarship, most of which is only tangentially related to teaching others how to practise law. Sometimes the scholarship is not even related to core legal problems. It can be theoretical. It can be about judging. It can be about law reform. It can be about societal reform. Rarely is it about lawyering. This focus is yet another incentive for a law school to expend resources to influence its reputation. In this case it leads to: reducing teaching loads to free time for scholars to write; hiring faculty who have interests that may be provocative, press-worthy, or attractive to university press and law review editors; encouraging faculty to travel; and promoting faculty to appear on television, write editorials, participate in national law reform or other social movements. They are, however, essential in the arms battle for reputation.

Legal employers use screening devices to arrive at the pool of graduates they consider for employment. Not surprisingly, they have confidence that the students at the most highly rated law schools have already been sorted by the academic criteria; they have the highest LSAT scores and the highest undergraduate grades. This approach is fully consistent with the hierarchical approach to learning that begins quite early in American education. In the face of this strong preference for input credentials, many employers look to what a student has learned only as a ‘tiebreaker.’ As perverse as this system might appear, it works rationally to sort new employees and does not undermine significantly the ability of law schools to attract new students and charge them a market rate price.

By any calculation, if cost exceeds return, legal education is in for rocky times. First, it is funded primarily by debt. Second, even when students are nervous about taking on law school debt, they often think that they have few alternatives other than to go to law school. Third, this has been a sensible strategy over the last several decades. Fourth, even when students understand the risk associated with high levels of borrowing in a modest job market, they tend to think that they will be the exception to the rule. Finally, for most of the last twenty years, the economy has heated up sufficiently to validate the investment in a legal education. While salaries may remain stable for short periods of time, they have tended to skyrocket and rise sufficiently to sustain the debt that students accumulate.

This analysis suggests that expensive schools with modest reputations will be in jeopardy. In this environment, only a handful of schools will survive: the old-line, high-prestige, law school; the inexpensive publicly funded schools; and new, lower-priced competitors that will accept students without regard to quality. However much these schools might escape the immediate consequence of a declining market for law school graduates, eventually they too may face a point at which price begins to exceed return. The first steps will be taken directly in the law schools, which will offer accelerated degrees combining semesters and summers or which allow substantial overloads of courses. Law schools derive their income from students studying to become lawyers. If they are to survive in the future, they must reconceive their missions.

Law schools will become mini-universities with multiple entry and exit points. Students will be able to take the whole program or parts of the program. The law school will forge alliances with other professions, seek out employees of those professions, and offer them advanced training in legal issues that will be useful to them in their professional lives.

Law schools try to be all things to all students. This leads to serious duplication of resources. This is wasteful. If schools cooperated with each other and shared their resources, costs could be reduced, schools could build real expertise, and students could be exposed to experts from many locations.

This current era is coming to an end. Price will matter in the future as credit constricts, the job market becomes less remunerative and the legal profession changes. This world will have its survivors whose brands or prices separate them from the pack. But the only other survivors will be those that will radically change — in form, in product, or in mission. Too much of legal education is currently devoted to faculty preferences at the expense of what is best for the school and its students. Too many law schools try to become attractive to students without the hard work of improving the substance of their education. Too many activities are hollow, directed to improving ranking, but not focused on the actual education of students. The place to begin is straightforward: schools must establish their missions and must fulfill their missions. If they are to avoid a decline, they must stand for something worthwhile. They must create a better product.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/LegEdDig/2006/7.html