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How law schools—and the legal profession—can do better
Law schools have lately joined motor vehicle registries and the U.S. Congress on the growing list of unpopular American institutions. Some schools have done more than others to earn the disfavor—for instance, by circulating questionable data on how many of their recent graduates find suitable employment. At the same time, some out-of-work recent graduates have undertaken what they see as poetic justice: suing their alma maters, alleging that their bleak job prospects point to fraud. More than a dozen suits have been filed, with the list of accused including the law schools of Hofstra and DePaul universities and the University of San Francisco. As of September, judges have thrown out suits in Michigan, Illinois (against DePaul), and New York; the remainder await consideration.
Recently, members of Congress—and most notably Democratic Senator Barbara Boxer of California and Republican Senators Charles Grassley of Iowa and Tom Coburn of Oklahoma—have turned an investigative eye on law school recruiting, as well as on the student debt that now averages close to $100,000 per student at private law schools, a 200 percent increase in the past 25 years. Repayment normally begins as graduates head off to look for high-paying jobs, which, for many, simply won’t exist. In 2010, the median starting salary of law graduates in private practice was less than $63,000. Drawing on American Bar Association (ABA) data, the New York Times reports that barely half (55 percent) of all law school graduates in the class of 2011 found law-related work within nine months of completing their education. According to the Chronicle of Higher Education (citing the Bureau of Labor Statistics), between January 2008 and September 2011, the legal field suffered a net job loss of roughly 4.3 percent, even as the size of law school graduating classes nationwide grew.
What’s more, law schools have endured embarrassing accounts of their efficacy in the media—stories about newly minted lawyers who don’t seem to know what they’re doing once they arrive at their first law firm job, about contracts classes during which students never see a contract and criminal law classes where plea-bargaining is not mentioned.
Such developments have prompted observers to speak fairly enough about a growing crisis of confidence in law education, and have led members of the legal profession, including some law school faculty, to open a public conversation on the issues in blogs with titles like “Inside the Law School Scam” (by Paul Campos, a professor at the University of Colorado, Boulder, Law School) and “The Jobless Juris Doctor” (by an anonymous 2009 law school graduate).
Proposals to deal with the crisis have started flowing. In 2011, Senators Boxer and Grassley called on the ABA (self-described as “the world’s largest voluntary professional organization”) to require that accredited law schools furnish their applicants with transparent, detailed employment data, including salaries of alumni. The ABA has responded by revising its annual questionnaire to law schools and will make much of the information it collects available to the public. Two Yale Law School professors, Akhil Reed Amar and Ian Ayres, have proposed that law schools return half-tuition to students who decide to quit after the first year—a way of discouraging schools from admitting paying applicants who are unlikely to succeed. Many critics want to go further, by discouraging qualified students as well from entering law schools. For example, in his book Failing Law Schools (2012), Washington University law professor Brian Z. Tamanaha recommends tightening eligibility for federal student loans for law school. His argument is based on a purely monetary assessment: that law school is a raw deal for most students, because the costs are out of proportion to the expected financial returns, by his calculations.
Other observers and practitioners stress that the education itself has to change. There is near-universal agreement that law schools need to prepare their students for the practice of law with courses emphasizing basic procedures and conventions at least as much as theory and case study.
All these remedies take aim at real problems. At least some of them should be enacted. And yet they collectively fall short of what’s needed in this country, which is a broad rethinking and restructuring of legal education and the legal profession itself. The changes underlying the profession’s current problems, including the loss of many high-paying legal jobs, are permanent.
Law schools need to pre-educate potential students to think more clearly about why they want to be lawyers. They can start by being honest about the material rewards. What has changed fundamentally in the law profession is the high-flying economic model that made it possible for major firms to offer lavish salaries to new associates who performed rote tasks as part of their training. That model is no longer sustainable or even warranted, due to automation (the development of software to aid document discovery, for example) and outsourcing (to both domestic and offshore contract attorneys). As a survey conducted last fall by the Wall Street Journal bears out, clients are increasingly unwilling to pay a high price for the billable hours of lawyers-in-training.
Would-be lawyers have to be taught to see the law not as a clear path to riches, but as what it has been historically—a respectable middle-class profession. Too many current applicants do not see the law this way; they must be enlightened, even at the risk of driving some of them into MBA or engineering programs.
No small part of the challenge is to revitalize the idea of law as an honorable calling, not simply a career. As a professional school within a liberal arts Jesuit university, Boston College Law School has always tried to nurture in its students a sense that they are preparing for a vocation in life that, whatever area of law they choose to enter, is a profoundly important way of serving others. Every law school should make clear that it is not a place for students who can’t think of anything better to do, or who would be just as happy in a management or engineering masters program.
On the tactical front, law schools should do more to ensure that their new graduates are “practice-ready,” as the ABA emphasized in a nonbinding resolution last August. That means offering more and better clinical opportunities, internships, and classes that get down to workaday matters such as how to write a contract or negotiate a plea bargain. Law schools ought to be able to offer this preparation while continuing to do what they do best, which is training students to think critically and nimbly under pressure, write clearly and persuasively, and bring coherence to complex situations.
Tinkering with the curriculum, however, will not meet the challenge of shaping lawyers for the expanding needs of corporations, the middle class, and the poor. Radical measures are in order. It is time for the legal world to consider adapting (again) a hallmark of medical education. Graduates of medical schools are not expected to be practice-ready. They have their degrees, they have been around patients, but they are not yet licensed to practice medicine. For that, they need to undergo an apprenticeship during which they apply their knowledge to the treatment of patients, supervised by experienced practitioners. Recognizing this to be a further and necessary stage of training, medical school graduates do not enter a hospital expecting to draw the salary of full practitioners, though interns and residents do get paid for their work—and their work is of value to the hospitals.
The current standard of three years of law school following on four years of college is fairly recent in this country—an achievement of the mid-20th century. Prior to then, legal training traced a meandering and varied course through the states, from the launch of early American law schools appended to colleges and private law offices immediately after the Revolution, to a democratization phase during the Age of Jackson that saw law schools dwindle (and elected judges proliferate) and bar requirements diminish (one state, New Hampshire, began allowing any desirous citizen over 21 to practice law). Apprenticeship to a lawyer was always a career pathway, but that form of experience, too, lost favor in the 1830s, with only 11 out of 30 U.S. jurisdictions requiring it. In most states, entry to the bar was contingent only on passing a loosely structured oral exam.
A growing appreciation of professionalism in fields such as pharmacy and medicine—and eventually law—led to the creation of the ABA in 1878 and to a resurgence of college-affiliated law schools. These schools were meant to complement office apprenticeships with one, two, or three years of academic study (with or without the prerequisite of a bachelor’s degree). At the same time, states slowly came around to mandating apprenticeships. (As late as 1922, no state flat-out required law school.) In 1917, 36 out of 49 jurisdictions required formal legal training of some sort, whether guided by an active attorney or by professors. Out of these two fonts of legal education—the office and classroom—arose a tension and alliance between the bar and academe that has continued in varying measure to this day. No state currently requires apprenticeship, but several (California, Maine, New York, Vermont, Virginia, Washington, Wyoming) continue to accept it as a form of preparation, in whole or in part.
I believe there is a need for a formal system of practical preparation, a one-year legal apprenticeship ending with a certification or credential to practice law. The apprenticeship could follow three years of law school—or, under a broader restructuring, take the place of, or be integrated into, the third year. Law apprentices would occupy a professional stratum somewhere between para-legals and attorneys.
This is standard practice in some legal systems, notably those of the United Kingdom and Canada. Realistically, however, I would not expect or perhaps even wish to see such a system become universally mandated in the United States. Some students who are especially distinguished, or who have carved out a highly marketable specialization through coursework and summer positions or internships, may not need a post—law-school period of training to qualify for a full position in a firm. And there have always been students who are not on the law-firm track, who are headed instead into business, government, or nonprofit work. The juris doctor is a dynamic degree, reflecting skills that travel well in other professions (and law schools ought to help students prepare for work in those, as well). All that said, growing numbers of law graduates are finding it exceedingly hard to land their first job. For them and for others, apprenticeships would be a boon.
It will be up to the schools to start devising models for apprenticeships. To this day, top law firms still hire the most promising young associates at top dollar; they have responded to recent economic shifts by simply hiring far fewer of them. Firms have to be persuaded that law internships, like medical residencies, are worthwhile, for them and their clients. Law schools can help by piloting programs with alumni who are partners at law firms, general counsels, and in other positions that might provide good learning opportunities for lawyers-in-training. Schools can also structure their curricula in ways that allow students to earn credit for what amount to apprenticeships; many law schools, including Boston College, provide semester-in-practice programs, through which students receive credit for work in a professional setting. Boston College Law School recently created the position of faculty director of experiential learning, to develop and coordinate opportunities for “real-world” education within and beyond the classroom. (Professor Paul Tremblay is the first holder of the post.)
But there will be no substitute for the legal profession taking responsibility for the development of its members. Medical schools do not train their students in residency programs; doctors do. And a similar symbiotic relationship could exist between law schools and practicing lawyers.
Some would say: why bother? aren’t there already too many lawyers? I think the opposite is true. There aren’t enough of them. Countless people in America lack access to competent legal assistance, and I am speaking of not only the poor but also the broad middle class. Studies dating to Cornell University Law School professor Roger C. Cramton’s seminal 1994 article, “Delivery of Legal Services to Ordinary Americans,” have documented the unmet need in this country for basic, cogent legal advice on matters ranging from mortgage refinancing and long-term care insurance to employment law and special education.
Consider the social and economic damage wrought by home-lending practices in recent years. How many homeowners would have been spared the personal and financial devastation of foreclosure, had they received proper legal representation? With a legal advocate in the room, how many would have renegotiated documents with questionable lending provisions, or simply walked away from a bad proposition? There was a time not so long ago when, in most states, a buyer or seller of a home could not legally carry out the transaction without representation by an attorney. Over the past quarter century, however, those requirements were lifted due to pressure from banks, title companies, and the real estate industry. It is time to consider such a stipulation again.
Another example: Surely, many of the tens of thousands of Americans—farmers, ranchers, and others—who leased their lands for gas drilling (including hydraulic fracturing, or fracking) and whose properties have been environmentally damaged, are wishing they’d had legal advice before signing contracts that left gas companies largely unaccountable. “If you’ve never seen a good lease, or any lease, how are you supposed to know what terms to try to get in yours?” one property owner told the New York Times, for an article titled “Learning Too Late of the Perils of Gas Well Leases,” published in December 2011.
Often, people can afford to hire a lawyer but don’t, because they have an exaggerated notion of what the bill will be. They don’t realize that a few billable hours or even days can spare them greater expense, as well as heartache. Or they simply can’t find a competent attorney in their area to provide a particular service. I know this from experience as well as from research. Several years ago, my mother asked me to help find a lawyer to assist her in establishing legal guardianship over her sister, who could no longer care for herself. We searched for weeks to secure a lawyer in her town who was willing and able to deliver the service. (If my mother had slipped and fallen on an oil rig, she would have had an easier time getting representation in the part of Louisiana where she lived.) My aunt died before we found someone suitable. Had we been able to get the legal help we needed when we needed it, the process of settling her affairs would have been much simpler. In the end, it took years to probate her estate.
For people who are struggling economically, or who face complicated legal issues, the cost of representation can indeed be an obstacle, and representation must be extended to them. Large companies and wealthy individuals shouldn’t be the only ones supported in the increasingly complex transactions of everyday life. Solutions may be gleaned from other affluent nations (Austria, Germany, the Netherlands) where middle-class people often have legal insurance akin to health insurance, and where litigiousness, ironically, is much reduced. Our government has helped create markets in the past: There was no such thing as a 30-year mortgage with an affordable down payment, for instance, until the Federal Housing Administration provided such loans, after World War II. Law schools might join government in finding ways to encourage more students to tend to ordinary people’s legal needs. For example, recent law graduates who serve the underserved in a solo practice might receive loan forgiveness from either their school or government-backed lenders or both. Small and medium-size law firms could also assign such work to lesser-paid apprentices, who would learn a specialty in the bargain.
Vincent D. Rougeau is the dean of Boston College Law School and the author of Christians in the American Empire: Faith and Citizenship in the New World Order (2008). A small portion of his essay appeared in the July/August issue of the Atlantic magazine.