McEntee, K P et al --- "The crisis in legal education: dabbling in disaster planning" [2013] LegEdDig 23; (2013) 21(2) Legal Education Digest 25

• The crisis in legal education: dabbling in disaster planning

---

The crisis in legal education: dabbling in disaster planning

K P McEntee, P J Lynch and D M Tokaz

University of Michigan Journal of Law Reform, 2012, pp 225-266

While the American legal academy and others discuss the looming ‘crisis’ of legal education, for many law school graduates, the crisis is here. In recent years, tens of thousands of graduates have struggled to enter the legal marketplace and find professional jobs with salaries that permit servicing student loan debt. High interest rates exacerbate enormous debt loads, with all non-payment risk falling to American taxpayers due to federal loan and hardship programs.

Small but necessary responses like trimming enrolment are band aids. Fewer students may mean that a higher percentage of graduates obtain jobs, but it does not mean that legal education will be affordable. Without structural changes to the programs providing legal education, costs cannot be significantly reduced.

The first model we discuss is the ‘3+3 Model,’ which shortens the duration of a legal education from seven years to six. A handful of law schools already do this. The second model we discuss is the ‘Modular Law School,’ which features an adjunct-heavy faculty. The third model we discuss is the ‘Lawyer Academy.’ This model combines all higher education and credentialing for lawyers into an academy focused on producing lawyers who are ready to practice law immediately after graduation.

Response #1: Accelerated higher education: the 3+3 model: The most structurally innovative program to be proposed by law schools is the 3+3 Model, wherein students receive a bachelor’s degree and a JD over a six-year period. Of the 13 law school programs we looked at that follow the 3+3 Model, 12 were substantially the same.

Generally speaking, students begin their studies in a 3+3 Model program with three years of undergraduate coursework. Students spend the next three years in a traditional law school program. To accelerate the education process, schools eliminate most undergraduate electives. The fourth year of education doubles as both the first year of law school (1L) and the remaining undergraduate elective credits. 3+3 programs are able to reduce the total cost of education by eliminating one year of undergraduate tuition, living expenses, accrued interest, and opportunity costs.

3+3 programs simply reduce costs by trimming undergraduate programs, with students receiving three-fourths of an undergraduate education. While this will save students some money, none of the savings come from reforming legal education. As a solution to the hardship caused by current tuition prices, these programs only serve as further evidence that law schools, if left to themselves, may choose reforms that are most convenient to them – namely, reforms that require no change whatsoever.

Response #2: Adjunct-focused structure: the modular law school: The Modular Law School (MLS) is a spin on the traditional law school model. While it preserves the appearance of the law school as an eminent institution, it uses significantly more adjunct teachers than is now the norm and frees course offerings from the confines of the typical semester-based schedule. The MLS will result in substantially lower tuition, flexibility in the form of a self-guided curriculum, and a closer connection between legal education and the bench and bar.

The key feature of the MLS is relatively short classes lasting weeks, not months. Students still complete the same total credits as with traditional ABA-approved law schools, but end up taking more classes, since each module is generally worth fewer credits.

The MLS requires four types of workers to function. First, the MLS relies on a core full-time faculty. This team has heavier teaching loads compared to the traditional model, as well as increased administrative responsibilities. Second, the MLS uses adjunct faculty. These independent contractors are experienced experts in their fields and about the topics their courses cover. A school will pay adjuncts for each credit hour taught and avoid long-term commitments, significantly decreasing fixed costs and the average class size. Third, the MLS has management – the dean and middle managers – that keeps the day-to-day operations of the law school running smoothly.

Compared with the traditional model, the MLS minimises the opportunity cost of taking a class, because students can better diversify their portfolio of courses. Traditional 2L and 3L semesters include three to five classes, each lasting 14 weeks. A typical upper-level MLS semester might include between eight and 11 classes. Furthermore, course variety and length encourage schools to develop substantive education niches while also facilitating student ownership of the direction and scope of their educations.

Such an adjunct-focused faculty comes with a few major challenges. Quality assurance is important at any educational institution and can be particularly challenging when using significantly more teachers than a traditional school. A module coordination staff, focused on the challenges distinctive to the modular structure, will play an all-important role in ensuring a sound and affordable legal education.

The MLT School of Law compresses the entry-level curriculum by increasing the number of hours spent in class each week (compared to traditional 1L instruction) and staggering courses from June through December. Once the entry-level curriculum concludes, students complete their studies at their own pace. If an upper-level student maintains the same pace – a reasonable average of 15 classroom hours per week – she could complete law school in twenty months. A student who decides to forge straight through, rather than working while completing upper-level studies part-time, would save significant opportunity costs compared to the traditional law school model.

The MLT School of Law’s entry-level curriculum uses full-time faculty to teach seven core subjects. These courses – each worth three credits – serve as the primary vessels for teaching law students to think like lawyers. The entry-level curriculum also includes nine modules. Two modules, each worth one credit, occur during the first two weeks of school: ‘Professional Responsibility’ and ‘Introduction to US Law’. These courses lay the foundation for studying law, including how to get the most out of a legal education. The remaining seven modules are companion writing labs taught by adjuncts, and each accompanies a core course. For example, the Civil Procedure writing module could teach students how to write and submit a complaint, an answer, and a reply.

At the upper level, introducing the concept of the module requires a greater attitudinal shift about how schools deliver education. Unlike the supplemental modules at the entry level, the modules are the dominant format for upper-level coursework. The MLT School of Law replaces the semester-long courses of the 2L and 3L years with a series of modular classes taken at a pace chosen by the student. These modules have varying lengths, both in terms of class weight (eg, one-half, one, or two or more credits) and class span (eg, over one, two, or more weeks). Finally, each MLT School of Law student would complete an eight-week externship for six credits.

A few brief examples demonstrate how these modules differ substantially from typical upper-level courses beyond credits and span. While Evidence might be offered once a semester in the traditional model, under the modular structure, the school could separate its many parts into separate courses.

The MLT School of Law greatly reduces expenditures on services that are not necessary to receive a sound legal education. It does not have a physical library, relying instead upon electronic access and strategic partnerships with nearby universities and law firms.

Because the primary driver of the modular model is cost reduction for students, measuring success depends on cost outcomes.

First, the size of the student body greatly affects the expense of running the school. For the MLT School of Law, we assume an average entering class of 200, zero net attrition in subsequent years, and a norm of 24 months to complete the JD.

The program is in a metropolitan area with an average cost of living, which affects annual compensation (including benefits). Full-time faculty make an average of $150,000, the law school dean makes $200,000, and faculty assistants make an average of $48,000. The module coordination staff makes an aggregate of $250,000, and the externship coordinator makes $100,000, based on a $500 per graduating student fee in lieu of tuition for the externship credits. Adjuncts average $2,500 per credit hour taught and do not impose a need to finance payroll taxes (unlike the employees previously mentioned). Finally, we have built in additional overhead of $3,000,000 to cover other expenses like a building lease or mortgage, electronic library access, technology services, janitorial services, office supplies, additional staffers, recruiting students and faculty, and academic support.

To determine how many full-time faculty and adjunct faculty to use, it is important to consider the curriculum structure, some average class statistics, and faculty expectations.

Sticking with the conventional 700 minutes per credit, a student needs 83 credits to graduate. This course load would require 14 full-time faculty and 341 adjuncts. With $3,000,000 in overhead, payroll taxes for all employees, and non-teaching salaries, the MLT School of Law has roughly $7,900,000 in annual expenses.

Given all of the assumptions above, if the school charges students $343 per credit, the school can cover its expenses without public or private subsidies. The average total tuition paid for a JD is $28,503, less than every single ABA-approved law school in the country. Now assume the student borrowed from the federal government under current lending rules and a cost of living set at 1.5 times the poverty line for a single-person household. With this two-year program, a single person borrows $16,755 per year (rather than nine months) for living expenses. Together with tuition, the student will leave school after having taken out $62,013 in debt while adding one extra year to lifetime earnings and one fewer year of interest and borrowed living expenses.

On this metric, the MLT School of Law is roughly a quarter the cost of an average private law school.

As presently written and construed, the ABA Standards and Rules of Procedure for Approval of Law Schools, which include binding Interpretations of these standards (together, ‘ABA Standards’), present the largest impediment to adopting the MLS.

So far, we have only discussed how the MLS might look if it were created from scratch. If an already-approved ABA school considers changing its structure, it will have additional challenges, both regulatory and political.

Increasing the number of faculty members at a school also multiplies the potential for personnel problems. More importantly, finding an adequate number of quality adjuncts in anywhere but the country’s largest cities may prove extremely difficult.

Response #3: Professional legal training programs – the lawyer academy: People once learned the law in the United States not by schooling but through a combination of apprenticeship and guided self-study.

In an effort to reimagine legal education, local legal communities could reassert their historical role in legal training. For example, state bar associations and court systems (together, ‘bar regulators’) could blend apprenticeship methods with effective, low-cost processes for recruiting, training, and evaluating future professional colleagues. Our proposal – the ‘Lawyer Academy’ – does just that, replacing both undergraduate and JD studies with a new educational program for lawyers.

Its core aim is to reduce the opportunity costs of becoming a lawyer by attending, within a flexible framework, to the needs of candidates, the profession, and those who desire legal services. Like the MLS, it aims to remove expenditures not necessary to a sound legal education. Unlike the MLS, however, the Lawyer Academy does not rely on using the law school as the primary institution.

It is a professional school with a comprehensive vision of the profession. Designed with the success of elite American military academies such as West Point in mind, candidates receive a core liberal arts education with a focus on preparation for law practice. While Academy candidates may be admitted at any time after high school graduation, latecomers are not restricted from candidacy.

The educational program consists of four levels, each overseen by a committee of working professionals. Advancing from level to level depends on course completion (measured by credits) and the candidate’s ability to achieve a variety of competencies.

With a normal pace of completion at roughly one level per year for the first three years, and roughly two years for the final level, legal education at the Lawyer Academy actually takes more time than the traditional three-year law school model. Rather, significant time and opportunity cost savings come from not requiring an undergraduate degree and from providing a curriculum that facilitates candidates finding paid work during school.

The Law Academy curriculum follows the same pattern as traditional legal education. Students learn basic legal theory through a core set of courses on civil procedure, torts, contracts, and the like, and then progress to advanced coursework. Though the upper levels embrace significant in-class learning, including advanced business and advanced law courses, the Academy accomplishes upper-level training through apprenticeships in a variety of field placements.

Once created, a bar regulator would manage the new program like any other program it administers on behalf of the public and its members. The main difference is the breadth and depth of the program’s structure.

Lawyer Academy costs need not pass through to members of the bar as with other programs. Instead, the Academy holds prices down through explicit rules for revenue use. Rather than defining scholarship as part of the school’s mission, the Lawyer Academy divorces scholarship from training, declining to use tuition revenue to fund the production of legal scholarship. This creates a closed loop where tuition dollars are used for programs designed to educate, train, and prepare tuition payers for their eventual careers as lawyers and advocates. Not surprisingly, this significantly reduces the possibility of high faculty compensation.

Some faculty will come to the Academy to teach part-time, others will teach full-time. In some cases, candidates will travel to faculty at other educational institutions, such as business schools or more traditional law schools, or at field placements. The result is a fluid structure, where candidates progress through the curriculum by keeping one foot in the Academy and the other in the real-life practice of law.

This blueprint is too early in the process of development to approximate tuition.

Among the opportunities for making education affordable is the chance to redesign both faculty composition and the faculty compensation structure. The Lawyer Academy compensates faculty for their time spent teaching and, when applicable, administrative duties. The goal is to attract greater involvement by members of the bench and bar who favourably view the Academy’s goal of recruiting and training ethical attorneys. Whether through teaching pro bono or at a level of compensation less than their normal billable rate, faculty might find that meaningful contribution to the legal community is worth the discount.

Integrating an affiliated law firm into the Academy is another attractive option. Arizona State University’s (ASU’s) Sandra Day O’Connor College of Law recently announced that a teaching law firm will supplement its legal education for graduates who do not obtain a job right after graduation. Graduates of ASU will receive a salary and benefits, paid for through fees collected by the law firm for the affordable legal work it provides. Rather than waiting until after formal legal education has been completed, the Lawyer Academy could run the same program with a reduced salary for JD candidates.

Presently, the normal rate of completion for a legal education is four years of undergraduate and three years of law school, often with a year or two in between. Candidates at the Lawyer Academy spend two fewer years in school and two additional years working full-time, not to mention that time in school also consists of gaining paid experience in a professional capacity.

The employers who are most likely to be interested in hiring Lawyer Academy graduates are members of the legal community in the Academy’s jurisdiction. A non-trivial number of employers need to express a desire to hire these graduates, and not just those from the top of a class.

Any fair evaluation of whether a prospective candidate ought to attend the Lawyer Academy must look at both the ‘winners’ and ‘losers’ emanating from the system. One should ask whether someone who fails out of the Lawyer Academy with $20,000 in debt (and no bachelor’s degree to fall back on) is better off than someone who graduates from an ABA-approved law school with $100,000-$300,000 in undergraduate and law school debt and does not pass the bar exam or obtain a legal job.

Beyond employability, demand, and cost issues, it is not clear how much this model can foster fundamental change in legal education without wide-scale adoption across multiple jurisdictions. Limited application of the Lawyer Academy model may be like putting out a forest fire with a watering can. If this is true, it may not be worth a bar regulator’s time to consider and implement this program.

The three responses we discuss in this article may find their greatest utility, we hope, in shaping the approaches of legal educators and others toward training the next generation of attorneys. We want the two new models to be intellectual blueprints and to pave the way for new and better ideas about legal education. Accordingly, what matters is that this article provides a starting point for considering how the new models could work in principle. It is clear that cost reform is necessary, and it is likely that substantial reform is coming. What it will look like depends on those who get involved, who we hope include more than just those who led legal education into this disaster.