What’s the Right Prescription for Legal Education?

I think of myself as a political liberal in the classic sense of the word. That is to say that I believe the society
should embrace change, rather than resist it.

In current political debate, the difference between liberals and conservatives is more commonly thought of as the choice between those who believe that government can solve problems and those who believe problems are best solved by individual choice as reflected in the market.

Unabashed liberal than I am, I’m no ideologue. I don’t believe that ideology, be it liberal or conservative, provides the answer to every question. To find the right public policy one must first correctly diagnose the problem and then prescribe the change most apt to solve it. If the prescription runs counter to one’s ideology, perhaps ideology should be left aside.

So, I am an occasional reader of the Wall Street Journal editorial pages, even though they are extremely conservative.

Recently, I happened upon an opinion piece there by James L. Huffman, Dean Emeritus of the Lewis and Clark Law School and a member of the Hoover Institution’s Task Force on Property Rights, Freedom and Prosperity. Huffman’s piece, entitled “Perverse Incentive of the Lawyers Guild,” (Wall Street Journal, February 21, 2013), analyzes the current problems facing American legal education. As he notes, costs are up and applications are down. Law schools are scrambling to stay afloat. And as mentioned in my most recent post “Distant Rumblings from the ABA Meeting, ” the ABA has created a task force on the future of legal education, charged with studying the problem and recommending solutions.

Huffman rightly suggests that the ABA should look within. He suggests that the fundamental problem is rooted in an endemic tendency of regulation. He argues that the regulators have captured the regulator, here the American Bar Association Section on Legal Education and Admissions to the Bar.

He has a point. The Section on Legal Education is dominated by law school deans and tenured law school faculty. The section sets the accreditation standards for law schools. It’s no surprise that those standards require that 80% of law school teaching be performed by full-time faculty, currently tenured or eligible for tenure.

At almost every law school, tenured faculty have one common characteristic: they were the most academically gifted law students of their generations. In short, they were “good at law school.”

That doesn’t necessarily make law professors good at practicing law. Almost every law professor I know has all the ability it would take to be a great practicing lawyer, but little or no interest in being one. Few have much practical experience.

Most law school faculty members are interested in research and writing about jurisprudence: the philosophy or science of law. It’s an important subject matter and learning about it is critical to being a good lawyer. But as I’ve argued often in the past, it’s just not enough.

To this point in the argument, Huffman and I — liberal and conservative — agree completely. Our analysis of the problem is the same. But his prescription for change and mine differ, at least in emphasis.

Trusting to the market, Huffman suggests that the ABA should “free law schools from most of the existing standards and encourage them to draw on the enormous intellectual power of their faculties to design and test innovative approaches – – and let a thousand flowers bloom.” In his view, “the ABA’s role should be limited to assuring that prospective students and legal employers get full and honest information about what could become a bonanza of legal education alternatives.”

In my view, we know a lot about the knowledge and skills law students ought to be taught to serve the public well as practicing lawyers. Many members of the public are not well-equipped to evaluate whether the lawyer they are hiring has what’s needed to competently handle their problem.

I think the rules of accreditation should be changed to require that law schools be what the name suggests they are: professional schools graduating students with the basic knowledge and skills required to competently handle legal problems requiring professional attention.

That said, I certainly agree that more flexibility in the accreditation rules is needed to permit and encourage law school faculty to engage in scholarly activity intended to improve legal education in the future.

Either way, there’s a point to the conservative analysis that should not be ignored by the greater ABA. We have indeed allowed the regulated to become the regulators. There can be little hope for positive change unless the ABA is prepared to shift control of the accreditation process away from the deans and law professors.

I’m not going to hold my breath.

Rich

Tagged as: American Bar Association, Bar Association, Lawyers, Money, Political