The crossed purposes of legal education

One of the signs that change is underway in the legal profession is that elephants in the room are becoming easier to talk about. One such pachyderm is growing increasingly obvious in legal education: the disconnect between what prospective law students imagine about the profession and what they eventually find when entering the legal workforce.

A good illustration is supplied by two recent items that zero in on the cost of a legal education versus the financial value it eventually delivers. One is an article in Forbes magazine, the other a post at the Tax Law Prof blog; it’s instructive that neither originated in the mainstream legal media (though the ABA Journal‘s Law News Now picked them both up).

The average US law school graduate, Forbes says, enters law with $100,000 in debt; the median starting salary for the US law class of 2007, NALP reports, was $65,750, and nearly 40% of all starting salaries were below $55,000. Most American lawyers are saddled with debt for a long time, and while the situation isn’t as dire in other countries, rising education costs have been pushing it that way. You can have an argument whether the debt is worth the career it enables; the more pressing issue is whether law students understand the financial realities of a legal career.

Forbes writes about “the great college hoax,”  drawing a comparison between professional schools and subprime mortgage hawkers: “Misguided easy-money policies that are encouraging the masses to go into debt; a self-serving establishment trading in half-truths that exaggerate the value of its product; plus a Wall Street money machine dabbling in outright fraud as it foists unaffordable debt on the most vulnerable marks.” A few law schools, the magazine reports, deliberately obfuscate the rewards of a legal career, but too many more finesse or downplay the reality of the debt versus the earning power of a law degree.

This is an embarrassment, said the panellists at an AALS Committee on Research Program, the podcast of which is available at Tax Law Prof. The strongest words came from New York Law School Dean Richard Matasar: “We should be ashamed of ourselves.  We own our students’ outcomes. We took them. We took their money. We live on their money …. And if they don’t have a good outcome in life, we’re exploiting them. It’s our responsibility to own the outcomes of our institutions.” Southwestern Law Dean Bryant Garth added: “This group [the AALS] has stonewalled completely and killed any kind of real consumer information for 20 or 30 years, and that’s what made U.S. News own this particular enterprise.”

In some ways, of course, the debt problem will fix itself. One of the reasons law school tuition soared so high over the past decade was that credit was so easy to obtain. Those days won’t return for another decade, and you can expect to see law school tuition (and law school spending) decrease accordingly. Richard Matasar pointed out another self-corrective measure: LSAT applications are holding steady or decreasing at many schools, the first time that’s ever happened during a recession. “They’re catching on,” he said. And the ABA is finally looking at re-engineering its law school certification process, so that “output measures” like employment statistics will become more important.

But I think there’s a larger issue here. These concerns echo the longstanding complaint about law schools, that they don’t prepare students to practise law. But here’s the thing: law schools and the legal profession exist for two different purposes and serve two different ends. Schools are in no way obliged to report to the Bar or to take its priorities into consideration; so why are we constantly surprised that they don’t? The wonder is not that law schools don’t prepare students well for practising law; the wonder is that they prepare them for it at all.

Law schools are involved in one industry — the granting of legal degrees. Legal employers are involved with another industry — the selling of legal services. Law students mistakenly believe — and we encourage this belief — that it’s all one single industry. They believe they’re traveling on a single road that starts in law school and ends in professional employment. In fact, they’re on two different roads, connected only once and briefly by a crowded merge lane that’s now in some disrepair. Students wonder why the left hand doesn’t talk to the right — but these two hands are on entirely different bodies.

Most law schools don’t make a priority of clarifying students’ expectations of a legal career, providing them with data on career prospects, or inducting them into professional practices, because that’s not what they’re set up to do. They grant law degrees; if lawyers’ governing bodies have decided those degrees are a sufficient  preparatory step towards a legal career, that’s the profession’s business, not the law schools’. If that system is not working — and there’s a pretty powerful case that it’s not — then the onus lies on the profession to rethink its training and admission process, not on law schools to rearrange their affairs on orders from an industry to which they don’t report and whose interests they weren’t created to serve.

I’m not suggesting that law schools should be wholly owned and operated by law firms or corporations. I’m not suggesting bar leaders should sit on university boards of governors and direct law schools’ curriculum choices. I’m not suggesting that if law schools want to stay relevant and solvent, they should coordinate their curricula with lawyers’ governing bodies. All these things could very well come to pass regardless of whether they’re good or bad. I am suggesting that we’re not going to make any progress on improving legal training until we understand that we’re not dealing with a single leaking pipeline, but with two pipelines jury-rigged together. We need to take a closer look at our blueprints.

Note to regular readers: I’ll be in Vancouver next week at the Canadian Corporate Counsel Association’s World Summit — drop me a line if you’ll be there too —  so posting won’t resume until the end of the month.


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