MauledAgain

Stephen J. Friedman, dean of Pace University School of Law, has published an essay in which he asserts that "legal education has not evolved to meet the demands of a rapidly changing profession." Much of what he says repeats what I, a few others in legal education, and legions in practice have been saying for many years. His essay, though, is so diplomatic that he doesn't address a recent phenomenon in legal education that, if left unchecked, will exacerbate the problem. That phenomenon is the change in the preferred background of individuals hired to teach at American law schools.

At the core of Dean Friedman's analysis is his conclusion that "the educational goal of an American law school should be to educate and train effective new lawyers." He addresses how law schools should attain this goal, but for me that's a matter of dealing with a symptom rather than the problem. The problem is that many law faculty do not agree with Dean Friedman. I do. Whenever I make an argument that rests on the premise that the goal of legal education is to educate law students so that they can become legal practitioners, I am met with disagreement from many of my colleagues, not only where I teach, but elsewhere. One colleague put it as succinctly and openly as possible. Law schools, she explained, exist to train legal philosophers. I am grateful she was so direct, because it spared me the effort frequently required to get past the slogans often used to mask that perspective.

My practical reaction is, "Who's going to hire legal philosophers?" Apparently the answer is, "Law schools." What has been happening in law school faculty hiring is a rush to find candidates with Ph.D. degrees. A debate is underway in the legal blogosphere on the question of whether a Ph.D. is "necessary" or "essential" for teaching interdisciplinary courses in law schools. These are courses involving the relationship between law and economics, law and sociology, law and philosophy, and similar "law and" topics that look at law from a theoretical perspective.

Before turning to the question of whether law school graduates, after seven years of post-high-school education, are bringing to their employers as much as those with degrees from graduate programs in other disciplines, it helps to examine how legal education has evolved to the point that as long as thirteen years ago the American Bar Association MacCrate Commission issued a report criticizing the disconnect between legal education and law practice. Though many law schools have responded by creating and enlarging legal clinics, externships, practice simulation courses, and other experiences that mirror, to a greater or lesser extent, what happens in law practice, those efforts remain on the margin in all but the very few law schools that make legal practice experiences the centerpiece of student academic activity.

Legal education suffers from a flaw that does not afflict other disciplines. It awards doctoral degrees to students who do not have bachelors or masters degrees in the subject and who have not been required to pursue a program of prerequisite courses as is the case with the M.D. degree. A wee bit of history is most enlightening. Before the 1960s, a student graduating from an American law school earned an LL.B. degree, namely, a bachelor of laws. It was the student's first law degree. Awaiting those students who chose to continue their legal studies, though at the time few did, were the LL.M. and S.J.D. degrees, which are, respectively, the masters and doctoral degrees in law. During the 1960s law students pressured law schools to award doctoral degrees, because their college classmates who continued their studies were earning doctoral degrees. Rather than rebutting the request by pointing out that the person earning a Ph.D in, say, history, already had a bachelors and masters degree in history and thus had invested as many as 8 or 10 years in studying the subject, law schools accepted the simplistic, logical and yet misleading argument that "seven years of post-high-school education entitles the student to a doctoral degree." Hence, the invention of the J.D. degree to replace the LL.B. Law schools offered their existing graduates the option of replacing their LL.B. diplomas with J.D. diplomas. I personally know attorneys who chose not to do so because, having been in practice, they understood the superficiality of the change.

So, today, legal education is a weird world in which a lawyer who seeks admission to a Graduate Tax Program to earn an LL.M. in Taxation must demonstrate that he or she already has a doctoral degree in law. Wow....a doctoral degree as a prerequisite to a masters degree in the same discipline. Is this upside-down or just goofy? Perhaps both, but more importantly it is a warning. The so-called three years of law study for which a student is awarded a J.D. degree are so insufficient that two more programs of law study await the person who wishes to "run the table" in the discipline. Market forces, particularly in specialized areas such as tax and international law, have generated a substantial increase in the number of students enrolling in the one-year LL.M. programs. Few continue to seek the S.J.D. degree, the only market value of which is a slight boost in the chances of being hired to serve on a law faculty. In recent years, the Ph.D. has eclipsed the S.J.D. as the "terminal degree" favored by many if not most law school hiring committees.

Of course there is an abundant supply of candidates with Ph.D. degrees, especially when compared with the number holding S.J.D. degrees. Everything else being equal, a candidate with a Ph.D. degree will hold an advantage over a candidate without one. In some instances, there is no doubt that the Ph.D. degree is essential. When a law school offers a joint program, such as one in law and psychology, the nature of the program usually demands that there be faculty who hold both a J.D. and a Ph.D. degree in the subject matter of the program. Packing the faculty with Ph.D. holders, as I saw in a brochure yesterday from a law school announcing its new hires, all but a few of whom held Ph.D. degrees, ultimately will turn law schools into philosophy schools, much to the detriment of the legal profession and the clients who rely on it to solve their problems and help them plan to avoid problems.

Is the Ph.D. essential, or even helpful, with respect to law curriculum not wrapped into a joint program? More importantly, does having a law faculty rich in Ph.D. degrees somehow make law schools more likely to prepare law students for law practice? My answer to that question is not only "no", it also includes the assertion that a Ph.D.-rich faculty makes it less likely. Law faculties are rapidly becoming the paradigm for S.J.D. degree faculties (though few law schools offer that degree), with a concomitant distancing from the traditional goals of the LL.B. (now masked as J.D. doctoral degree) first level program in law. Those who claim that "having some Ph.D. holders on the faculty is good" may be overlooking the natural selection process by which another is added, then another, until only Ph.D. holders are hired. Eventually the entire faculty becomes one on which no one serves without a Ph.D. It is a phenomenon not unlike the one by which most institutions of higher education in America have become politically homogenous. What does this "Ph.D. trend" foretell for legal education? The analysis should begin with the needs of those to be educated.

One of the biggest challenges faced by law students enrolled in most traditional law school courses is unfamiliarity with the underlying subject matter. Law, of course, does not operate in a vacuum and is not, at least to me and some others, an abstraction in its own right. Law is necessary because people do things, say things, write things, and disagree about things. Law exists in the context of conversations, agreements, accidents, thefts, murders, waste dumping, war, marriage, adoptions, and just about everything that people do. Thus, when a first-year law student encounters torts and criminal law, there is a higher comfort level than there is with contracts and civil procedure, because most first-year law students have a pretty good idea of what car accidents and murders involve but don't recognize much that is involved with concepts such as answers and exculpation clauses.

Consequently, (too) much time is invested in law school courses getting students up to speed with respect to the underlying transaction or event. Years ago, law students had to struggle on their own to get up to speed. In recent years, a variety of factors have coalesced to shift much of that remedial work into the classroom, at the price of topic coverage. Those factors, which include student resistance to self-teaching, student expectations of "three more years of college," the use of student evaluations in making tenure and compensation decisions with respect to faculty, and even the need of some faculty to be "liked" by their students, have caused overcompensation in attempts to blunt the severity of the generation-ago law school experience illustrated in tales such as "Paper Chase" and roundly criticized by many current law faculty as "unnecessary" or "not conducive to learning." I'm not talking about eliminating the practice of insulting, yelling at, or traumatizing law students. I'm talking about practices that let 90% of the class know that they can coast while the "principally responsible row" has responsibility for preparing the next day's class, or that reduce reading load to several pages a night because students do not prefer "demanding" courses.

At the same time that these adjustments have put pressure on faculty to reduce topic coverage so that familiarity with underlying transactions can be incorporated into the course rather than left to student self-learning characteristic of most other graduate programs, three other developments have put even more constraints on the depth of student experience with legal topics. One change is that the law has grown in scope and quantity, as areas of practice unknown or relegated to a distant corner thirty years ago have moved to center stage. Environmental law is perhaps the most widely suggested example, but there are others, such as employment discrimination and international trade law. The second change is that within each area of the law, rules, cases, and administrative pronouncements have issued forth in torrents of words. Though I am often heard to gripe about the "doubling" or "tripling" of tax law during the time I have been teaching, the same can be said by my colleagues who teach courses such as corporations, bankruptcy, international law, or just about any other area of the curriculum, with few exceptions. The third change is that by adding and expanding legal clinics, externships, and similar experiences into the curriculum, law schools have made it necessary for students to cut back the credits invested in traditional courses. After all, any proposal to resolve this problem by expanding law school to four years, matching, for example, medical school, are met not only with predictions of student resistance, but also with simultaneous proposals to reduce law school to two years on the justification that little is accomplished during the third year and third-year students claim to be, or are, "bored."

Because of these pressures, increasingly more students are graduating from law school without having taken courses in tax, decedents, corporations, domestic relations, or other long-considered "bread and butter" courses of the legal profession. They hope and try to fill in the gaps when they sit through the bar review "cram" courses after graduation. Those courses, as everyone knows, are no substitute for the law school experience. It comes as no surprise, then, that practicing lawyers are frustrated with what law graduates cannot do. Dean Friedman points out the commonly-known fact that the pressure to rack up billable hours leaves little or no time for partners and senior associates to take newly hired law graduates through the apprenticeship-like experiences that were common a decade or more ago. Clients understandably do not want to be billed for, or pay for, the training of newly hired graduates who are uncertain of what they are to do. Students who have been through a clinic and who are hired to work in the same or a related area of the law are among the few exceptions to this phenomenon. Even today, though, fewer than half, and probably fewer than a third, of law graduates have had the opportunity to "do a clinic." Though some large law firms have instituted substitute processes to bridge the gap, medium and small firms are economically compelled to leave that task to Continuing Legal Education providers. A dangerous trend, the shifting of legal education from law schools to CLE providers, is looming on the horizon.

Dean Friedman's proposal is not unlike one that I continue to advocate. He suggests that students have "a law school experience that comes as close as possible to an integrated combination of skills, knowledge and substantive law in one broad area -- such as litigation or corporate transactions -- than with a smorgasbord of unrelated courses." For years, I have advocated abandonment of the doctrine-focused law school subject breakdown to make room for transaction-based courses. For example, a first-year course in "residential leasing" would combine the relevant aspects of contracts, torts, property, tax, consumer protection, dispute resolution, litigation procedure, drafting, and all the other areas and skills of law that bear on the consequences of signing a lease and the planning factors that ought to be considered before doing so. Any seasoned lawyer will explain that in practice clients arrive with problems, to be solved or avoided, and not with doctrinal questions. Similar courses could be developed for "taking a job," "starting a business," "entering into a relationship," "having children," and so on. The primary benefit of this approach is that it integrates doctrine in a practical context, a benefit that is particularly useful considering the absence of the fourth year of law school in which this could be done. A secondary benefit is the efficiency of eliminating overlap, in which the same case or legal principle is covered in multiple courses, "boring" students who have already encountered it, but necessary because some students in the course haven't yet learned it.

Interestingly, Dean Friedman suggests that "While we don't need radical changes in a law curriculum that has worked for a long time, legal education must be brought into closer alignment with the need of law students to hit the ground running when they begin to practice law." I disagree. I DO think we need radical changes in a law curriculum that dates back to the end of the nineteenth century. My guess is that Dean Friedman, being a dean, is being necessarily diplomatic. After all, the principle disadvantage to my proposal is that it would require a huge amount of adjustment and remedial learning by law faculty. It is no wonder that they almost universally oppose my plan. Someday a law school, most likely a new one, will decide to forego "imitation of the elite 25" and set out to do what Langdell did some 125 years ago, and that is to change law school so that it is congruent with the world in which its graduates will practice. I doubt it will happen in my professional lifetime else I'd be hanging my phone number and email address on the end of this paragraph.

The likelihood, though, of this happening at any law school is decreasing rapidly. Trends in law school hiring are widening the gap. At one time, practice experience, whether in a law firm, corporate legal department, or government agency, was considered essential in the background of a faculty candidate. Now, the Ph.D. degree or some academic experience, is at least as desirable if not preferred. The intense pressure to publish "scholarly" pieces has given the edge to applicants who already have published. Considering the time pressures of law practice, it is less likely that a practitioner will carry to the interview the resume filled with publications as will the person who hasn't left the academy. Law faculties that evolve to become islands of academics researching and publishing in theoretical areas will be far less sensitive to the needs and realities of legal practice. In some instances, some traces of hostility to the practice world have been, and will be, detected.

Thus, when Dean Friedman writes, "A more focused approach to legal education would recognize that law schools are professional schools, designed to prepare students for entry into a specific profession," he expresses a perspective that conflicts with some of the trends that have been underway in legal education for the past 5 or 10 years. I am sure he is aware of these trends. It will be interesting to observe the outcome of the several changes he describes that have been made to the curriculum at Pace, though it will take another 5 or 10 years to measure that outcome by evaluating the experiences in practice of the students currently enrolled at his school. I wonder, though, if American legal education has that much time. I wonder if the legal profession can wait that long before deliberately or inadvertently changing its relationship with the legal academy.

Over at the Money Law blog, interesting comments are being shared in A great debate at WSJ's Law Blog. The discussion began with a Wall Street Journal op-ed in which Cam Stracher ponders how a paralegal arrested for practicing law without a license had succeeded in doing so for as long as he did without making a mess of things. Stracher, who teaches at New York Law School, observed that there is no reason to conclude the paralegal would have done a better job had he attended law school.

Yes, once again, not surprisingly, legal education is being criticized. Certainly I have contributed more than a few barbs, in pieces such as "So What's the Problem with the Problem Method?", "Bar Exam Pass Rates, Legal Education, and a Plea for More Law School Clinics", "Beer, Softball, 4-Day Weekends: Is This Any Way to Learn Law?", "The Law School Curriculum: Ready for a Change?", "So What Do You Buy When You Pay Tuition?", and "Law Schools: Preparing Students for Practice?". It would appear that there's not much to be added. But appearances can be deceiving.

Despite being convinced of the need for serious reform of the legal academy, for the reasons I share in "Want to Be a Lawyer? Just Say That You Are!",I have not been persuaded that law school and the bar examination should be tossed aside. The proposal to open up alternatives to law school reflected a response to the growing emphasis at most law schools on faculty scholarship, a trend that fuels my commitment to persuade law schools to hire those difficult-to-find faculty who can produce useful publications while bringing law practice into the classroom.

What got my attention was the response [subscription site] to Stacher's op-ed piece that was penned by two Boston University law professors, Tamar Frankel and Wendy J. Gordon. Objecting to practice-oriented legal education, they argue, "Legal education may need revamping, especially as our economy and technology develop, but going back to an 18th century apprenticeship model is not the solution. We teach future professionals, not tradesmen." After correctly pointing out that law schools do offer clinical courses, trial practice courses, and writing courses, Frankel and Gordon claim, "But the best practice will come after law school, with maturity, with watching the senior partners and with learning from mentors."

And that, folks, is the scary part. What Frankel and Gordon are suggesting is a continuation of the decades-long habit that sees law school graduates getting paid to observe, to do research applying first-year legal research skills, to do tasks that paralegal can handle, and even to do secretarial work. That arrangement, made possible by charging clients for the time invested by what can best be called trainees, no longer works well and is breaking down even as some in the legal academy hinge their arguments on it. Why is it breaking down? Clients have become smart. They do not want to pay the apprentice to watch and observe. Similar fee pressures make it more difficult for established associated and long-time partners to invest time in mentoring. Law firms cannot charge clients for the hours of conversation between mentor and trainee.

Yes, it is true that starting salaries at the elite law firms are sky-rocketing. The elite law firms get to hire the best graduates from the best law schools. These are students who have the ability to extract from their legal education and from their experience every bit of useful understanding that they can squeeze from the combination of what the faculty offer and what these usually self-starting individuals dig up for themselves. To the chagrin of my best students, I tell them that I don't try to teach the A students, because they're quite capable of teaching themselves. Others have more need of my guidance.

The pressure on those graduates lucky or unlucky enough, depending on one's perspective, to receive and accept an offer from a top-line high-paying law firm is enormous. If the salary is $165,000, these new employees must generate something on the order of $400,000 or more in legal fees. Is the work that they do truly worth $200 or more per hour? The clients will let us know.

But what happens to the other law school graduates? Some end up as judicial clerks, where they do have a magnificent opportunity to be mentored. Speaking from experience, nothing can substitute for a year or two (or two and a half in my case) of one-on-one examination of the law and legal analysis. But most law graduates do not have the opportunity to bridge the gap between law school and law practice in this manner. Many are tossed into law offices overloaded with work, public defenders' offices and prosecutors' departments operating at full steam almost twenty-four seven. They are, in many ways, dropped into the deep end of the pool and told to swim, no lifeguard on duty, thank you very much. Somehow the idea that the law practice world will step in and make up for the deficiencies of legal education is a bit too much to accept as appropriate or even honest.

Defenders of what legal education has become and is becoming insist that law school is not and should not be "trade school," much in the manner argued by Frankel and Gordon. Of course law school is not trade school. It is not a place where students, other than those in clinical courses, learn which document is filed with a particular county office, or as I heard during my student days, "how to find your way to the court house." That's not what advocates of practice-focused legal education want.

Law practice involves problem solving and problem prevention, on behalf of clients. To that end all legal education should be pointed. Problem solving and problem prevention requires problem recognition, and there is a place in law school for the emphasis that currently is placed on issue spotting. Problem solving often requires creative thinking or development of new public policy, and there is a place in law school for a bit of the public policy analysis and legal philosophy focus that is beginning to swamp the curriculum. When upperclass students tell me that I'm the only member of the faculty that reminds them to think about the client and to try to think as does the client before fashioning a response to the client, I shudder. Ought not an understanding of client psychology have a place in helping students learn what considerations shape the legal analysis they share with clients and how they package that analysis?

Teaching law in the abstract is something that is far too prevalent in America's law schools. Teaching law in the abstract fails to open the eyes of law students to the practical realities that shape the law when theory meets practice. The common defense, exemplified by Frankel and Gordon, that law schools offer clinical courses and trial practice experiences, is a canard. For many law faculty, clinics are a necessary distraction, and remnants of what was at one time open hostility to clinics and those teaching them still hover over many schools. Trial practice courses are fine, but most law graduates don't litigate cases. Certainly few, if any, litigate as soon as they enter practice, and many lawyers never enter a courtroom as a litigator during their entire professional careers.

Law schools do not need more courses. Goodness, the array of courses in the law school curriculum is overwhelming. During the past decade, all sorts of courses reflecting the scholarly interests of law faculty have been added because they are interesting, provocative, and often necessary to attract the "scholar who will assist in out-Harvarding Harvard in the U.S. News marathon" game.

What's needed is a change in the structure of the traditional doctrinal courses. It's not enough to learn that the law requires one thing or another. It's important to consider whether the parties will act in accordance with it, to understand what the options are when the theoretically correct legal answer does not match the actions of the client or some other person, and to appreciate how one's approach to the matter can influence how the client deals with the matter. It is more important to understand how the law came to be the way it is than it is to advocate some law reform that has little if any chance of seeing the light of day in a committee let alone a court or legislature. Professional responsibility issues need to be incorporated into substantive courses and not stashed in the corner in a separate course, because in practice those issues do not arise in a vacuum. Some of my students bristle when I raise professional responsibility questions in my tax and decedents' courses, because "that stuff is in another course." Well, it ought not be. The same problem exists with respect to digital technology. Most law faculty continue to omit discussion of cutting edge legal issues arising from the existence of legal technology, perhaps because they don't understand it and don't have the time to learn about it because they're under pressure to crank out ten more articles for tenure. It's only in my decedents' course, my students tell me, that they are challenged to consider the legal issues arising from the use of digital signatures on wills, revocation of digital documents, and the issues arising from the disposition of the decedents' email and email accounts. To put it bluntly, law faculty need to prepare students for practice in the twenty-first century.

There are an assortment of comments in the Money Law Blog posting on the Frankel and Gordon reaction to the Stracher op-ed. Take a look. You'll even find a short one from me:

It has to do with truth in advertising. There's something wrong with schools of law ending up as schools of (legal) philosophy, advanced political science and similar elements of the S.J.D. degree. My determination to speak out against the ongoing shift in legal education was triggered by a colleague's comment 15 years ago, "We aren't here to train lawyers, we're here to teach legal philosophers." Sorry, but legal philosophers is far, far down the list of what this nation needs from its educational system.

As much as I like my comment, I will also quote Bill Henderson, because he says it so elegantly: "It is time the legal academy began to focus on the problems and trends are affecting the legal profession today rather than an exclusive focus on the legal issues or scholarly debates that engage law faculty. If we do this, I am confident how and what we teach would change."

Law schools are on notice. It's time they turned their attention from defending the status quo to making a transformation that repairs the connection between legal education and law practice. It's time to reject the monopoly of theory in the same manner that monopoly of practice - the so-called trade school approach - has been consistently rejected. It's time for legal education to be rescued by the lawyers.

In How A Transformative Recession Affects Law Practice and Legal Education, I examined the impact of the current recession on law firms, including their relationships with law schools, and extrapolated these developments into a prediction about the future. With clients demanding lower hourly rates and elimination of inefficiencies from the rendition of legal services, and with firms rescinding offers, curtailing or terminating summer programs, and showing the door to associate after associate, the legal world, I noted, is watching "one more nail in the coffin of legal education as we know it" get pounded home. I predicted that the quality of applicants to law schools will decline, that the number of law students will decline unless law school tuition is adjusted to reinvigorate demand, that law schools will need to increase faculty teaching loads and cut back on "scholarship [written] for the benefit of other scholars," and that we might even see the practice world, perhaps a combination of law firms cooperating with bar admissions committees and state supreme courts, establish schools that prepare people to practice law so that their salaries can be justified to the law firm's clients.

In Law Schools, Teaching, Legal Scholarship, and the Economy, I examined Richard Posner's proposal that law schools have a department of legal doctrine. I suggested that law schools, or more precisely, their parent universities, need to separate law teaching and legal institutes so that law school tuition funds education and some other sort of funding, if it exists, sustains the legal think tank. I noted that law faculty need to wake up and get in touch with the realities of what is happening in the law practice world, and that law schools are not insulated from the impact of this sea change in the world economy.

I posted those thoughts on March 16 and March 27, respectively. What feedback came my way was notoriously private, that is, people agreed with me but were unwilling to go public. Understandably, they had more to lose than do I, or at least are in a more difficult position than am I, from challenging the legal education establishment as it presently exists. It's not so much the reluctance to criticize, for it's easy to find people critical of modern American legal education, both inside and beyond the walls of the nation's law schools, but a reluctance to come across as a prophet of doom. There is legitimate concern that when a dean or someone in a comparable position of authority within the academy publicly agrees with the sort of predictions that I am making, there will be a self-fulfilling prophecy that can come back to haunt the person as those hurt by the changes seek to put blame somewhere other than on themselves. Although encouraging voices from within legal education continue to be in short supply in the public forums, more and more commentators outside the academy are chiming in and making many of the same arguments, and predicting many of the same outcomes, as I have been offering.

On April 1, Adam Cohen, in With the Downturn, It’s Time to Rethink the Legal Profession, also looked at the recent developments in the legal profession, and concluded that if there is a "silver lining" to the bad news, it's "that the legal world may be inspired to draw blueprints for the 21st century." He predicts a drop in associate compensation. That's already beginning to happen. He also predicts that lower compensation means that associates will not need to work as many hours. I disagree. The economics of law firms is that law partners think it's more profitable to hire fewer associates to do more work than to hire more associates to do less work. I'm not confident that the perspective of the partners on this issue will change very much. Cohen predicts that the billable hour may disappear. He's probably correct. Then he turns to legal education and, after noting the scale of law graduate debt loads, suggests that law schools "will need to keep tuition and other costs in check" so that students can move into the profession without being saddled with "unmanageable debt." He wonders if more schools will follow Northwestern's lead and offer two-year programs. What he doesn't mention is that the total cost of the two-year program, as it now exists, isn't a 33% discount from the cost of a three-year program. In fact, it's barely cheaper and carries the obstacle of blocking out summer employment income, though at the moment there's not much in the way of summer employment income available. Cohen also emphasizes the need for law schools to "become more serious about curriculum reform," with "more pressure on schools" to add "more focus on practical skills." He suggests that law schools should "pay more attention to preparing students" to end up in "business, government, journalism and other fields." Though I share Adam Cohen's outlook, I must warn that those who "draw blueprints" are those who realize there's a need for a new building or a rehabilitation of an existing one. I'm not yet convinced that law faculty generally understand the need for some heavy-duty construction and reconstruction of legal education. Deans do. But deans are not CEOs and it remains to be seen what they do after they trim budgets and work with the financial statements.

On April 6, Katharine Patterson, a long-time legal recruiter and HR management consultant, brought her extensive experience and "in the middle of all of it" perspective to bear in Tough Times for Law Firms, Lawyers May Be Catalyst for Positive Change. Drawing on the impact of the last three major legal recessions on the profession, she, not unlike Adam Cohen, points to the current difficulties as an opportunity for productive change. She predicts the demise of lockstep compensation, the growing use of "more dynamic models that account for productivity and contributions to the firm's long-term institutional identify," and the disappearance of, and I think this is a great phrase, the "donkey and carrot race for partnership." She, too, turns her eye toward university campuses. She tells us, "Law school hiring will change. On-campus hiring will move to the end of the second law school yar, and look a lot more like business school recruiting." She thinks students increasingly will seek admission to two-year programs or "schools that offer stronger internship and practical training opportunities beyond academic legal training." As did I, she uses the "nails in that coffin" language to describe the impact of the recession on the way things have been done in the past, such as institutional loyalty. She then makes a point that I've also heard, in somewhat different terms, from someone who is a law school dean. She explains, "The current generation of young lawyers and law students is cursed not just by its lack of experience of hard times, but by an egocentricity born of good times. They just don't know how to behave, and can come across as self-centered and childish." Amen. Sadly, I can say the same thing of many who are on law school faculty, who have been able to ride a student debt bubble into a journey of writing scholarship for which no market has been, is, or will be willing to pay. I wonder how many deans will use the words "egocentricity" or "self-centered" when describing the reactions they encounter when they break the news that course loads are increasing, scholarship no longer holds center stage, and teaching, as measured by performance of the school's graduates, will be more of a factor in tenure and compensation decisions.

Perhaps all of this turmoil will indeed bring worthwhile change. The change needs to be more than structural. It needs to be more than shortening or lengthening the number of years one enrolls in law school. It needs to be more than incorporating law practice skills into the curriculum. It needs to be more than increasing faculty course loads and decreasing the time invested in scholarship for other scholars. The change needs to reach into the heart of law school culture. Law schools need to be more demanding of their students academically and to be more willing to dismiss those who cannot accomplish what law practice demands. Law schools need to put an end to relying on the useless portions of student evaluations of law teaching, and need to stop playing to the U.S. News rankings. Both best serve legal education and society by being dumped into a landfill. Both have contributed to the current failings of law schools, as the first causes law faculty to play the popularity contest game at the price of giving up the important quality of being demanding and the second has encouraged law faculty to churn out scholarship for other scholars, namely, faculty at other law schools whose U.S. News vote they are trying to acquire.

Patterson predicts that similar changes will wash through law firm culture. She predicts that "lower salaries, fewer offers and a much more competitive job market" will encourage law students and law graduates to "focus on performance and achievement." She tells us that law firms "often condoned shockingly bad behavior by students during summer programs" and that this should end, explaining, "Firms now have a chance to teach tough lessons that will make better lawyers." Indeed, law schools ought to be taking advantage of the chance that briefly exists to "teach tough lessons that will make their students better lawyers."

Adam Cohen concluded with these words: "Law school deans, bar association leaders and firm managers should follow Rahm Emanuel’s advice about never allowing a crisis to go to waste and start planning for what comes next." Katharine Patterson ended her article with this advice: "We are all in this together, firms, companies, law schools, students, folks who want to make careers in the law. Let's take advantage of this time of change and invest in all our futures. Law practice has come a long, long way since 1980, and hard times give us the chance to build an even stronger future together." I conclude with this simple notion: Law school faculties are on notice that they can act now, when there is a chance to influence the transformation of legal education, or act later, when they are trying to survive the tide of change.

Today is graduation day at the Law School. While students look back at what they have accomplished, they also are looking forward. The financial and employment stresses pulsing through the third-year class are impossible to miss. The looking forward part of the equation reflects, in no small part, what happened during the time to which they are looking back. Have they accomplished enough to persuade an employer to give them an opportunity to apply what they have learned and to sharpen their skills? Some have. Others, though developing sufficient skills, have run into a buzzsaw of a turbulent economy. Still others never quite got it. It's a difficult time to be graduating from law school, and these students are caught in the gap between the business-as-usual of years past, and the hopefully reformed legal education paradigm of the near-term or longer-term future.

Almost two months ago, in How A Transformative Recession Affects Law Practice and Legal Education, I analyzed the intersection of legal education, law practice, and the economy, and concluded, among other things, that the long-term impact on legal education might take one or more of several forms, including this one:

One other possibility remains. Bar associations and bar admissions committees, and perhaps state supreme courts, will question the wisdom of limiting bar applicants to graduates of accredited law schools. Enterprising practitioners, perhaps law firms joining together in collaborative and creative efforts, will form schools focused on preparing people to practice law. Properly operated, they need not charge the tuition rates currently being charged. Wise organizers will hire people with law teaching experience and ability, who have more attachment to teaching and less concern about scholarship, to administer and teach in these new institutions. They should be able to provide more experience in the nature of clinics, practical writing, transactional courses, and marketable post-graduation skills. With sufficient clout, they and their practitioner organizers should be able to persuade bar admission authorities to accept their graduates as bar exam candidates. By hiring bright, accomplished law graduates to team teach with experienced practitioners, they will foreclose the expected arguments from the law school monopoly that only faculty at law schools of the present kind know how to teach law. Ultimately, universities will see this development as a threat to their law school revenue sources, and seek to imitate or take over these institutions, at a far greater cost than would have been the cost of reforming their own law schools. Despite that disadvantage, it would provide the benefit of returning law schools to their principal mission, and like other industries, cause legal education to emerge from this transformative recession in a new and more robust form as will happen in other professions and areas of business.

Even if it does not come to pass in precisely this way, the possibility should compel legal educators, including law faculty, to think seriously about where they've been, where they are, and where they might be going, voluntarily or involuntarily. The threat of change ought be considered not as a risk but as a welcomed encouragement.

I know there are people who think my warnings and predictions are total nonsense. Several days ago, news broke that something not unlike the "law firms … form[ing] schools focused on preparing people to practice law" had arisen. In Diamonds May Be a Law Firm's Best Friend in Economic Downturn, Gina Passarella of the Philadelphia Legal Intelligencer gave this report, referring to the "current economy and a clear shift to a buyer's market""

The latest example of that shift comes from Drinker Biddle & Reath, which told its incoming associates last week that it would lower starting salaries for the first six months of the year to $105,000. The associates will then be in a training program for those six months without the pressures of a minimum billable requirement. The salary will then go back up to "market rate" at the end of the six months. During the training period, associates will have formal training but will also be expected to shadow partners in more of an apprenticeship model.

In other words, the new associates are going to continue their schooling. Though they will not be charged tuition, they will see their salaries cut by tens of thousands of dollars. Economically, that's equivalent to being hired at the previously prevailing rate and then paying tuition.

Why is the Drinker firm doing this? The answer was provided in that same How A Transformative Recession Affects Law Practice and Legal Education post: "When they [law school students] learn that fewer and fewer law firms are hiring law school graduates because clients are not willing to pay for what little law school graduates bring to the table, some will turn away from the idea and others will join in the increasing chorus to reform legal education." Or as Drinker chairman Alfred Putnam Jr. explained, "[H]e thought about deferring the 34 associates who would be affected, but at the end of the day they would still be first-years, just a year later. Putnam said clients are particularly averse to paying for first-year associates, and this was a way to make them 'saleable.'" He noted that, "[E]ven for very robust firms that continue to have profitable work flowing in the door, there is a marked shortage of work for newly made lawyers. In addition, the days of large law firms assigning (and clients paying for) 'armies' of very junior lawyers to large-scale litigation or transactions are over -- likely never to return." This was in a letter that Putnam sent to the associates. Putnam expects this new model to continue.

Can you imagine entering law school, thinking that if you did well you would graduate into a position paying $150,000 a year, sufficient to pay off the $100,000 or more of loans undertaken to finance the law school education, only to discover that even though you did do very well your salary would be roughly $45,000 less because you needed more training to reach the point at which clients would pay for your services? How long will it be before a sharp, creative, and determined young associate sues his or her alma mater for a $45,000 refund? Whose fault is it that the associate isn't ready to practice? The associate, who did what was asked by the faculty and was told that he or she had done very well, with a high cumulative average, honors, and perhaps even Order of the Coif? The law firm, which didn't warn law schools, and hammer home to them the fact that their graduates were increasingly less prepared and acceptable to clients? Or the law schools, to a greater or lesser extent depending on the degree to which they have made available to all of their students educational experiences that match what law practice demands? Will the eventual consequence be pressure to eliminate the third-year of law school so that students can invest a year, perhaps at little or no salary but without tuition outlays, in training at law firms? This suggestion, which has been around for decades, was highlighted by Joan Arnold, a partner at Philadelphia's Pepper Hamilton firm, who remarked that "there needs to be a seismic shift in the way attorneys are trained before they even join a firm." Joan, by the way, is a Villanova graduate and a member of the school's Graduate Tax Program adjunct faculty.

Perhaps a useful, but frightening, analogy can be drawn from reports beginning to emerge from investigations into the crash of the Continental Connections flight in Buffalo a few months ago. According to this CNN report, the pilot had learned the theory of operating the stick-pusher emergency system but "had never trained in a flight simulator" with that system. Another pilot, making an analogy not unlike the "watching me ride the bicycle doesn't cause you to get in shape" message I give to my students, explained "It's similar to picking up and throwing a groundball in baseball. You can study it academically all you want but you really need to develop the proficiency, the skill, the muscle memory required to do that."

If there is any doubt that even the so-called best law schools aren't getting the job done that needs to be done, one needs only to read a response given by Justice Antonin Scalia during a talk at American University Washington College of Law. According to this New York Times report, a student asked what she needed "to do to become 'outrageously successful' without 'connections and elite degrees.'" After telling her "Just work hard and be very good," Scalia told her that her chances of being selected as a clerk to a Supreme Court justice weren't good. His explanation was a backhanded slap at legal education: "By and large, I'm going to be picking from the law schools that basically are the hardest to get into. They admit the best and the brightest, and they may not teach very well, but you can't make a sow's ear out of a silk purse. If they come in the best and the brightest, they're probably going to leave the best and the brightest, O.K.?" [emphasis added] In other words, law schools are unable to wreck the intellectual skills of the best law students who, as some faculty recognize, pretty much teach themselves and often accomplish what they do despite what some members of law faculties do or fail to do. But what of the bottom 90 percent of the class? Though I disagree with Scalia that none of the best and the brightest end up at other than the elite fifteen, he probably thinks it is too time consuming to try to ferret out the outstanding students who are "hiding" in the 185 or so law schools that aren't in the top cluster.

The economic tailspin did not cause the sea changes that are and that will be swamping law practice and legal education. When the wind blows over a fence whose posts have been rotting for years, is the wind to blame? The recession may have been the catalyst, but had legal education been producing law graduates capable of doing work worth hundreds of dollars an hour during the year after graduation, the impact of the economic downturn would have played out very differently. That's water over the dam, but surely work must begin now to prevent even worse consequences the next time things go haywire, and though that may be some years in the future, the legal education crisis is not going to be resolved in a matter of days, weeks, or months. There's enormous amounts of work to be done, and highly challenging arguments to be made to persuade law faculties that the work should be done, before anyone can get started on that work.

But today, at least for a few hours, the graduates hopefully can put these thoughts aside, and enjoy their moment. Tomorrow will arrive soon enough.

The rapidly growing legal education crisis (which I explored seven years ago in The Future of Legal Education and Law Faculty Activities) has inspired lawyers, judges, law faculty, politicians, and clients to toss out all sorts of ideas for fixing the problems and making legal education relevant for the twenty-first century. Recently, Brian Leiter weighed in with Four Changes to the Status Quo in Legal Education That Might Be Worth Something. One of the ideas that he highlighted is borrowed from the judiciary:

2. Judge Posner suggested some time ago that law school be shortened to two years, with a third year optional depending on a student's career goals. Those who want to be tax lawyers could do what is, in effect, the LLM in tax in the third year; those who want to be legal scholars could devote the third year either to cultivating scholarly skills or teaching skills, depending on their academic goals (per #1); those who haven't secured permanent employment after two years could use the third (at some appropriately reduced cost) in externships designed to enhance marketability, with some supervision from academic or clinical faculty; and so on. Of course, this dramatic change would only work if many legal employers would be prepared to hire students for "summer jobs" after the first year, so that they'd have the kind of 'hard' evidence they most value about suitability for the job (as well as collegiality, which is often more important). And, of course, in the short-term, shortening law school would have the perverse effect of increasing the supply of new lawyers in an already depressed legal job market.

Aside from the two disadvantages that Brian notes, namely, a transitory increase in the number of law school graduates and the need to find summer experiences for first-year law students, there is at least one other significant disadvantage to shortening a student’s time in law school.

My focus this morning is on the example of structuring legal education so that “[t]hose who want to be tax lawyers could do what is, in effect, the LLM in tax in the third year.” This is not my first exploration of the question of how long a law school education should be, a topic I addressed in Beer, Softball, 4-Day Weekends: Is This Any Way to Learn Law?. Though it may not please law students or law faculty to read this, there’s no escape from the reality that is encountered in LL.M. (Taxation) programs. Though many LL.M. (Taxation) students have had three years of law school and most of the others are in joint programs structured so that they will have completed three years of law school before taking the second half of their LL.M. courses, too many LL.M. (Taxation) students continue to struggle with basic legal concepts that form the foundation for study in tax law or any other area of the law. Too many are unable to write clearly, to identify issues, to work their way methodically through a checklist, to appreciate the interrelationships among tax concepts and between a tax concept and an associate legal concept, or to understand source of law differences. Far too many have had insufficient exposure to specific areas of law that are pervasive in tax practice, such as international law, wills and trusts, business entities, labor law, and administrative law. Just as law schools pay no attention to the array of courses on an applicant’s undergraduate transcript when making admissions decisions, so, too, LL.M. (Taxation) programs, and perhaps other LL.M. programs, are far less interested in the specifics of an applicant’s J.D. course array than they are things like GPA and identify of J.D.-granting school.

LL.M (Taxation) programs bank on J.D. graduates having had exposure to, and intellectual practice with, enough of the basic law courses that one or two missing ingredients can be overlooked. I don’t think that works very well but perhaps it’s better than nothing. The alternative, requiring certain prerequisites, poses the same economic survival risks to LL.M. programs as it does to J.D. programs. The problem with reducing law school by one-third is two-fold. First, barring changes in the J.D. program, students who struggle mightily because of the deficiencies in their J.D. experience will struggle even more. Second, at least some of the students who don’t struggle because they arrive with a solid J.D. experience will be disadvantaged when one-third of that experience is removed. In short, the number of students struggling will increase, and the reach of the struggle will deepen.

Reducing the law school experience to two years provides several advantages, not the least of which is a presumed one-third reduction in the cost of attending law school. I say presumed because I think law schools will make up the lost revenue in other ways. But at a time when law school easily could be expanded to four years considering the meteoric growth the scope, depth, and breadth of law during the past century-plus, a reduction would be counter-productive unless it were offset with an increase in intensity, an increase in rigor, and serious changes to what transpires in the educational experience. There is room to improve the efficiency of legal education. Though repetition is a helpful learning device, it is wasteful when credit hours are scarce and even more wasteful if credit hours are cut by one-third. Though Socratic and quasi-Socratic discourse is helpful in many ways, it the time that it consumes – in contrast to other pedagogical methods – does not provide concomitant benefits. When students complain that my three-credit courses cover four credits worth of material, they are correct in terms of class hours – which usually are tied to credit hours – but I jokingly ask whether perhaps some of their other three-credit courses in which they are enrolled aren’t covering enough. Students could accomplish more learning in the classroom if they do more preparation outside of the classroom and more assimilation after they leave the room. Some of the most productive experiences for law students involve academic activities that occur outside the classroom, and in this respect I am thinking of well-supervised clinics, externships, and directed research efforts.

Perhaps reducing law school to two years – less than one-half of the total time physicians invest preparing themselves for professional practice – would be effective if students enrolled in courses during the summers before each of those two years. Perhaps reducing law school to two years would be effective if the number of credit hours required each semester were increased from the usual 14 to 16 to something on the order of 20 to 24. Perhaps reducing law school to two years would be effective if in addition to intensifying the experience, there was a change in what happens in courses and what students are required to do, as I explored in Is the J.D. Degree Merely a Ticket to More Training?

Five years ago, in Law Grads: Time to Start Reading Lots of Tax and Law Books, I commented:

The more I think about Larry's question and the reader's experience, the more I wonder what is happening in the law schools. To those who claim that there is no way three years of law school can prepare a person for the sort of situation in which the reader, and many other law graduates, were put, I suggest that law school be expanded so that sufficient years are available to provide time to do the course work required for the underlying LL.B. and the J.D.

So perhaps reducing law school to two years would be effective if law students arrived with an undergraduate education that prepared them for the study of law without the need for remedial courses or for remedial instruction in law courses. To quote one of my colleagues, “It is shocking how many law students don’t know what present value is.” Indeed. Shocking.

One thing to consider is that devoting one of the three years of law school to externships or clinics is not a reduction in the length of law school from three years to two years. Aside from the question of whether that sort of shift would reduce the overall cost of law school, that change is something far more overdue. The issue isn’t so much the length of law school but what is being done in law school. Once the latter question is resolved, the former question can be answered. Deciding that something can be accomplished in two years when two years is insufficient time merely increases the risk that what is accomplished in two years will be insufficient.

The other day I had a conversation with a student concerning job searches, employment prospects, law practice realities, and the changes that have swept over the legal profession. I returned to my office to find an invitation to a brainstorming virtual conference on the challenges facing legal education. Unfortunately, the conference schedule and my professional commitments overlap, so I won’t be able to participate. But my conversation minutes earlier and the invitation dovetailed nicely, and I decided to share my thoughts with the world. That’s fitting, because those who selected me as a conference invitee did so in part because of this blog.

An interesting thing about evolution is that it doesn’t grab our attention in the same manner as do revolutionary events. With a few notable exceptions, the dying out of a species is noticed after the fact. It’s unlikely that some early homo sapiens sapiens turned to his parents and said, “Goodness, look at me. I’m homo sapiens sapiens and you’re just homo erectus.” The change is gradual, more easily noticed by those who look in from time to time than by those who have almost constant contact with events. Some years ago, my son and I went to visit my parents. As we walked away from the house, my son, who had been away at school and had not seen my father for a few months, said to me, in words very similar to these, “Granddad doesn’t look good at all. He has really deteriorated.” Because I had seen my father much more frequently, I didn’t see the gradual changes. My son had the advantage, if I dare call it that, of looking in from time to time. And so it goes with what is happening with legal education.

To get a handle on evolutionary change, one who is close to the situation must step away and force themselves to look at selected locations on the developing timeline. That is what I try to do. I try to freeze-frame legal education and law practice as it is now, as it was five years ago, ten years ago, twenty years ago. It’s not so much the trends that I seek, but the extrapolation of change from the differences between characteristics associated with two or more of the selected moments in time. What I see causes me to conclude that during the next ten or fifteen years there will be gradual changes that will make the picture in 2024 very, very different from what it is today. It will be so different that our successors in the twenty-second or twenty-third century will look back and see the early twenty-first century as a time of revolutionary change in legal education because from that distance, it will appear that things changed very quickly.

The process of evolutionary change in legal education already has begun. Large law firms are making changes to how they deal with their first-year associates, by instituting what can be called apprenticeship programs. One arrangement can be seen in the details disclosed by Howrey LLP. Another arrangement has been developed by Drinker Biddle and Reath LLP. The differences between the arrangements are small, whereas the similarities are predominant. Generally, firms will reduce first-year associate pay significantly, will limit the number of hours that first-year associates can bill to clients, will cut back the rates at which clients are charged for those associates’ time, and will offer those associates a variety of opportunities to learn what law practice requires of them. Some of those opportunities will consist of judicial externships and following more senior attorneys to observe them in action. But there also will be traditional training in the sense that associates will attend what can be called classes. The firms that are doing this have moved beyond the earlier development, namely, law firms deciding not to hire law school graduates but to restrict entry to lawyers with a few years of experience. In other words, the initial reaction was to let others provide the education that law school graduates need and then to grab the best of them. Other law firms, though, perhaps listening in on my comments, figured out that if everyone sat back and waited for someone else to hire and train law school graduates, there wouldn’t be any trained law school graduates waiting to be grabbed. So firms like Howry and Drinker, and I’m sure there are many others, decided to tackle the problem.

What’s next?

Law firms will discover that to provide the best training without curtailing the production of more senior attorneys, they will need to hire lawyers who have that rare combination of practical experience and pedagogical expertise. For more than a few years, some firms have hired people to come in and teach legal writing, legal research, and similar skills to law school graduates who somehow, much to my consternation, earned J.D. degrees without having polished their ability to do these tasks. So it’s a natural, and evolutionary rather than revolutionary step, to hire a few more people to teach other skills, such as interviewing clients, figuring out where and how to find facts rather than black letter law, counseling clients, professionalism, and even substantive law. These steps will cost the law firms a not insignificant sum of money. Justified by treating the expenditures as an investment, law firms will see growth in what I will call their training staff. Over time, law firms will decide that they cannot permit the cost of training to grow uncontrolled. Someone will suggest that law firms could attain savings through economies of scale, by entering into cooperative arrangements with other firms. Suppose Firm A has someone who is particularly good at training law school graduates in the skill of client interviewing, and Firm B has someone who is just as good at training law school graduates in professionalism. Firm A arranges for its newly hired law school graduates to sit in on the professionalism sessions being taught at Firm B while permitting Firm B’s newly hired law school graduates to sit in on its client interviewing workshops. Either at the outset, or soon thereafter, law firms will create cooperative partnerships or LLPs, or perhaps even non-profit organizations, to handle this training. Advocates of bridge-the-gap programs will be delighted with this development. But it won’t stop there.

As law firms pump money into their “educational cooperatives” while paying law school graduates to attend, they will struggle with the fact that this model generates negative cash flow. There are several ways to deal with this. One is to eliminate the salaries being paid to the first-years associates except to the extent the associates generate the little revenue that they might be generating. Another is to charge the associates for the education that they are receiving. Still another is to invite smaller law firms, firms that cannot afford to set up these sorts of arrangements on their own and that don’t have much of an opportunity to set them up with other small firms, to participate in the “educational cooperatives.” These firms would pay a fee on behalf of their new associates that would permit them to attend the classes, workshops, and other educational activities undertaken by the educational cooperatives. These smaller firms may, in turn, reduce first-year and perhaps even second-year associate pay.

Critics might toss these arrangements aside as nothing more than “glorified apprenticeships.” Apprenticeship in law is not a new thing. In fact, it was the norm until roughly half a century ago. Apprenticeships died out because the time and money challenge to solo practitioners and small firms, which dominated legal practice at the time, pushed legal training into law schools, whose enrollment numbers quickly mushroomed when they and their universities discovered that law schools are profitable operations. Lawyers, for the most part, gladly relinquished the task of training other lawyers because they wanted to practice law, not teach it. The few who found teaching to be fun joined rapidly expanding law faculties or took positions as adjunct faculty often more for the fun of it because the pay for adjuncts was, and continues to be, insubstantial.

The difference this time around is that the bigger law firms have become sufficiently large to permit them to set up these educational cooperatives. As these cooperatives mature, they will lure the best teachers away from law schools, partly because they will offer better pay, and partly because they will provide an environment that is more conducive to emphasis on teaching than is found in many law schools. A few law schools, savvy and prescient, will hasten to form partnerships with these cooperatives, perhaps, in some places, taking them over. These law schools, though, are often disregarded by their peers, in much the same manner as many law faculty sneered at, and continue to put low value on, law faculty who teach clinics. Law firm education cooperatives will also discover that economic and practical factors will compel them to consider, and then adopt, accepting individuals who are not law school graduates. Some of these individuals would receive additional training, destined not to become members of the bar, but to become paralegals, support staff, and other specialists necessary to the operation of a successful law practice. Others will become lawyers. How?

Eventually, the law firm educational cooperatives will find it profitable to take over the training of those individuals that they perceive have potential to be excellent lawyers. It might help to compare this trend to the process by which major league baseball teams ended up with a minor league system, finding it more sensible to “train their own” even though many of their prospects end up with other firms, than to rely solely on players developed by baseball academies. There’s a reason the baseball academy concept didn’t pan out. There are two hurdles that the law firm education cooperatives will face. One is the perception that will lull most existing law schools into lethargic apathy. “They’re not accredited,” will be the usual comment. Yet, if one thinks about it, accreditation isn’t the issue. The issue is whether state Supreme Courts, or the boards under their supervision, will accept “graduates” of these cooperatives as bar examination applicants. Though law schools might think that they have some sort of monopoly, and thus guarantee, on this issue, practicing lawyers outnumber law faculty and law deans, by huge ratios. As the ranks of law school graduates dissatisfied with their law school educational experience, and distressed by the challenges they faced when they started their law practice careers because of deficiencies in their legal education, begin to increase, the political support for changes in bar examination application rules will strengthen. It’s only a matter of time. The other hurdle is the confidence on the part of many law schools, law faculty, and law deans that the only students who would even think about attending a law firm educational cooperative rather than a law school are those who don’t have the qualifications to be admitted to law school. Practical realities, though, will erode that assumption. A huge advantage held by the law firm educational cooperative will be its ability to charge a much lower tuition than do law schools. These cooperatives will not be under pressure to remit cash to a sponsoring university. These cooperatives will not be compelled to hire forty faculty when twenty-five or thirty, or perhaps even twenty, could do the teaching because they’re not caught up in the “scholarly writing” game. In recent years, more and more “young scholars” entering law teaching have demanded a course load of three courses, not for the semester, but for the year. And most of them have received what they have requested.

As these changes continue to follow one after another, or even alongside each other, increasing numbers of students will head for the law firm educational cooperatives. They will be joined by law faculty who aren’t enamored of the transformation that overtook law schools during the past several decades. What will save some of the schools is the fact that many judges will continue to hire graduates of top ten or top twenty law schools to be their clerks, and because those clerks should find jobs, law school applicants with high confidence in their ability to land a clerkship will still head for the Harvards and Yales of the legal education world. Many of the lowest tier schools, with their focus on practical training, will survive, either in tandem with specific law firm educational cooperatives or as absorbed components of those cooperatives. The middle two tiers of law schools, the ones that thought they could out-Yale Yale or out-Harvard Harvard, will fade away. Law firm educational cooperatives might outsource some education to top level law schools, but only if the course meets the needs of law practice. It’s more likely that the cooperatives will try to pry those it considers to be the best teachers away from the law schools. At this point, for reasons of economic security, the teachers will depart.

What will remain? Far fewer law schools, with faculties almost entirely composed of “legal scholars,” with fewer students, and serious financial challenges. Faced with the prospect of raising tuition or increasing teaching loads, the schools will be compelled to choose the latter. If anything, the economics of the law firm educational cooperatives will reinforce tuition reductions. Law faculty accustomed to investing most of its time in writing will find themselves in the classroom for six, seven, perhaps ten courses a year. Those who truly want to spend most of their time writing will depart for think tanks, institutes, and other organizations capable of finding funding to support an activity that the law practice market cannot afford. Others might persuade their universities to transform their law schools into legal institutes, taking on a handful of students as paying fellows, and desperately trying to work out some sort of survival arrangement with the law practice world and its law firm educational cooperatives.

Some law schools might learn the lesson and transform themselves before all of this comes to pass. Surely, as I’ve noted, a few will have done so. But unless Harvard or Yale or Stanford or several of the other “top” law schools does so, almost all the other law schools will “stay the course” (sorry) and wither. Most law schools, and that’s too many law schools, are afraid to buck the trend, in part because of their addiction to the rankings game. Because I think the Harvards and Yales of the legal education world will not see, and cannot see, the implications of what is happening in the law practice world, I doubt that they will evolve, or if they begin to evolve, it will be too late.

Ultimately, universities will seek to enter into arrangements with law firm educational cooperatives. Universities will have almost empty law school buildings to rent out. Some sort of deal will be worked out, though I have not persuaded myself that the cooperatives will become “schools” within the universities. The law firms that operate them will worry that if universities took over their educational cooperatives, the cycle would start over. And having been there and done that, law firms and their cooperatives will be reluctant to return.

And so, one day, ten or fifteen years from now, those who haven’t been paying attention will look around and wonder, “How did this happen? WHEN did this happen?” The answer to the second question is “Not overnight.” The answer to the first will require at least as many paragraphs as are within this blog posting. The details will be somewhat different, but the story will be the same.

According to this report, a proposed curriculum change at the Harvard Law School curriculum would shift the approach of teaching law from the almost ancient study of appellate cases to one that emphasizes "a more practical, problem-solving approach." Hurray! Well, hurray that Harvard is catching up with what a few faculty at some other law schools have been doing. Presumably, once Harvard puts its imprimatur on what is now the object of more than a few frowns and not-so-quiet criticism, the problem approach will become all the rage in legal education. I've been advocating the problem method since I started teaching, but my name isn't Harvard.

It usually comes as a surprise to people who've not been to law school to learn that what transpires in many law school courses is only remotely connected with what most lawyers do in their daily practice of law. Quoting the report"Many law schools, with their century-old teaching methods, do not prepare graduates for the day-to-day realities of law practice." There have always been exceptions, but those who have tried to turn law teaching from what worked in the late 1800s when the appellate case study method was adopted have consistently encountered resistance. For example, though today most law schools have clinical programs, in which law students assist impoverished clients under the tutelage of faculty members with practical legal experience, the battle to institute those programs was almost literally a battle. The debate over the tenure eligibility of "clinical track faculty" would be humourous were it not so embarrassing. The same sorts of battles have been fought with respect to the creation of legal writing programs, the imposition of a practical writing requirement for graduation to supplement the decades-long theoretical seminar paper graduation requirement, and even the adoption of a legal ethics course requirement. Though seemingly won, attempts to integrate legal ethics and other legal skills into doctrinal courses have been relatively unsuccessful.

For my entire teaching career, I have used the problem method to educate law students. I blend into that approach awareness of overarching jurisprudence, policy considerations, and ethical concerns. In other words, I try to replicate the intellectual challenges that students will encounter when they graduate and enter law practice. Whether they begin or end up in a law firm, a corporation's legal department, a government agency's counsel office, or a judge's chambers, or even in some non-law field, law graduates will be doing two primary tasks: solving problems and preventing problems.

So why are law schools so reticent to synchronize legal education with law practice? Several reasons have been offered at different times.

One explanation is that it is not obligation of law schools to teach lawyers. I've been told that we have an obligation to train "legal philosophers." Why? What do they do and who needs them? How many of the 30,000-plus law students who graduate each year will become legal philosophers? The notion that law schools are not responsible for training law practitioners is a vestige of the days, long gone, when law graduates served in what essentially could be called apprenticeships under the guidance of a practitioner. The economics of law practice and changes in bar admission requirements, chiefly the removal of the apprenticeship requirement, transformed the law practice side of the education equation but law schools did not respond. As a consequence, to quote from the report, "Young lawyers often find that law practice is starkly different from law school, contributing to high attrition at many law firms," and "The cost to firms of associate attrition is substantial: more than $300,000 per departing lawyer in unrecoverable recruiting, training, and replacement costs." Reading between the lines, law firms are bringing even more pressure on law schools to be relevant to law practice. Despite the emergence of "bridge the gap" programs funded by practicing lawyers, the reality is that during the first few years of practice, law graduates are very limited in what they can offer to law firms. Law firms expect something more for the $130,000 salaries they are dishing out to top students than a facility with appellate cases, oral argument (which few lawyers ever do), and legal theories. It is not coincidence that students who manage to get one of the highly coveted and short-supplied clinic positions progress far more quickly early in their practice experience. Again from the report, "'The case method..... falls pretty far short of actually training people to know how to be a lawyer,.."

Another explanation is the long-touted adage that "law schools are not trade schools." Though it makes sense not to worry about teaching law students how to find courthouses, the principal example rolled out by the "we're not a trade school" advocates, how does teaching law students to approach client problems as though they were problems going to turn law schools into trade schools? If by "trade" one means the ability to do something useful, every school should be a trade school. The whole point of the problem method is to teach students how to look at a new set of facts and apply principles in order to solve or prevent a problem. The problem method is not, and ought not be viewed as, the insertion of a "don't think for yourself" list of problems and solutions. The bottom line, again quoting the report, is that "law schools ought to be aware that they're training people for practice."

I don't buy those explanations, though I do understand that some law faculty sincerely believe they are teaching legal philosophers and not legal practitioners. I understand the concern that a focus on the practical might diminish the law school in the eyes of other University departments, many of which are very disconnected from the world beyond education. For the most part, I think those explanations are excuses.

So what do I think is the cause of the disconnect between legal education and legal practice?

The first explanation is what I call perpetuation. Though law faculty technically are hired by deans and University presidents, those officials act on the recommendations of law faculties or law faculty committees. Law faculty look for people like themselves (which is why faculty hiring can be a contentious process at law schools where the faculty is not overwhelmingly of like mind). Thus, hiring law faculty who will reform the curriculum is unlikely, because candidates with such an agenda will be considered too much of a threat to the existing way of life.

The second explanation is what I call faculty experience limitation. Some law faculty have little or no law practice experience. A few have never represented a client. Many have had a law practice experience limited to clerking for an appellate judge. This is what they know, namely, appellate cases and appellate practice. Never mind that the overwhelming majority of lawyers never argue an appellate case. For every trial level course or competition, there are at least as many and usually more appellate level courses and competitions. It's easy to teach that with which one is familiar. My courses, and those of some of my colleagues, are peppered with questions such as, "So what would you now ask of the client?" or "What would you tell the client?" Several years ago a student in one of my courses emailed me, on behalf of the class or at least a substantial number of the students in the course. He wrote, "You are scaring [the daylights] out of us. This is the first time we've heard the word client in a law school class. We don't have a clue what you are trying to get us to do." I suppose he was exaggerating, for surely they had heard the word client in some other course. No matter, the point is that what I was trying to get the students to do was so unfamiliar it was causing stress.

The third explanation is what I call faculty competence limitation. Almost all law faculty have limited competences. By that I mean most law faculty "specialize" in a narrow area of the law. One member of the faculty might teach torts and evidence, the competence of a personal injury lawyer, though perhaps from a jurisprudential rather than practical perspective. Another member of the faculty might teach business organizations and securities regulation. Both would admit that to teach the other's courses would be a daunting challenge. In a world of doctrinal education, this is a wonderful arrangement. Ideally, it permits the faculty member to do his or her "scholarly writing" in the same area. Supposedly there is reinforcement of the teaching by the research, and vice versa, though recent studies cast doubt on that assumption. Years ago, one of my colleagues was asked to teach five courses that had no coherent relationship to one another in terms of area of doctrinal competence. It was far from an ideal situation under the circumstances but yet it had the seeds of where legal education needs to go. The problem method focuses on the reality of what clients bring to their lawyers, namely transactions and events that have occurred or that need to be planned. The expertise required to assist a client in setting up a business ranges from tax law to securities regulation, across environmental and property law, and into employment and discrimination law. The expertise required to handle a divorce includes not only domestic relations law, but tax, business organizations, criminal law, negotiation skills, and familiarity with the law of wills and trusts, to name some. Few faculty have such expertise. Most law schools deal with this situation by hiring adjuncts, who almost always are, not surprisingly, practicing lawyers or judges. As the report explains: ''When a human being walks through a lawyer's door, they don't say, 'I have for you a tort problem' 'They say, 'I was walking to the office this morning and a car came by and knocked over this garbage can and it hit me and I fell off the sidewalk and I twisted an ankle and what are you doing to do about it?'"

The fourth explanation is what I call the invasion of the philosophers. In recent years there has been a rush on the part of many law schools to bring a "multi-disciplinary" focus to legal education. So into the curriculum come courses such as law and economics, law and politics, law and literature, law and history, law and religion, law and music, ok, I haven't seen law and music yet. To teach these courses, law schools are hiring "interdisciplinary scholars" who almost always have a Ph.D. in some discipline along with a J.D., though often with little or no client contact experience. The classroom context in these courses is much closer to that of a graduate philosophy department than to law practice. It's not that these courses are inadequate or inappropriate. They're not. It's that they displace other courses in the students' schedules. Is it valuable to bring a multi-disciplinary focus to legal education? Definitely. Why? Because law students enter law school with so many educational deficiencies that the law schools are compelled to provide remedial education. Good lawyers need to understand economics, history, literature, culture, and similar disciplines in order to understand the context in which law operates. Squeezing this remedial education into an already crowded three-year program is foolish. The addition of a fourth year, with half of it devoted to clinical experiences for all law students, would go a long way in delivering a better law graduate to the practice world.

The fifth explanation is what I call the curse of the J.D. degree. The J.D. degree is the only doctorate that is awarded to students who lack both a bachelors and a masters degree in the discipline. The fact that a J.D. degree is a prerequisite to the LL.M. degree, and that the LL.M. is followed by the S.J.D. degree is proof enough of the distortion. The distortion arises from a surrender to the demands of law students in the late 60s that their degree be a doctoral degree because "our college classmates are getting doctorates and we're only getting this lousy LL.B. degree." Pressed to explain, the argument was made that "after spending seven years of post-secondary education we deserve a doctorate just as our friends are getting." Rather than offending anyone, law schools gave in to these demands. Why law schools did not respond, "Ah, but your friends earned bachelors degrees in their discipline and entered the combined masters-doctoral program already educated in their discipline. You, however, aren't yet ready for a doctoral program." Well, there's no turning back from this supposedly "change in the letters" but there needs to be a turning back from the impression many law faculty have that because the principal programs at law schools are "doctoral" in nature, the education should be doctoral. Accordingly, much of what one would expect to be done in an S.J.D. program is being transferred into J.D. programs, at the expense of the LL.B. education that is being eroded. In the rush to make up for doctrinal deficiencies and to inculcate multi-disciplinary features into the J.D. programs, little time is left for problem solving and problem prevention.

The sixth explanation is what I call the downside of passive learning. During the past few decades, more and more law school courses have come to resemble the "feed and regurgitate" courses prevalent in many undergraduate programs. Whether so designed, or a consequence of faculty acceptance of student pressure for lectures in order to obtain favorable evaluations, the concept of passive learning is wholly inconsistent with the active style of law practice. I annoy my students, and even fuel dislike, when I ask a question and in response to quiet say, "So you're going to stare at the client and say nothing? Look in a book to see what I told you to say only to discover I didn't tell you because the client has told you one of the ten million possibilities we didn't have time to cover in this course?" Some faculty avoid that approach because they didn't like it, or the faculty member using it, when they were in law school and they have resolved to avoid using it because they don't want to be disliked. I'd rather be liked by my students after they graduate. Using the problem method triggers active learning because it puts the student into a real, rather than theoretical situation, where the constraints of practice must come to bear on the analysis. Students quickly learn that there are more questions than answers, and that the demand for "telling us what the law is" can accordingly be muted.

Note that these explanations are not separate and distinct features, but feed one upon the other. Experience limitation feeds perpetuation. The curse of the J.D. degree contributes to the invasion of the philosophers. The downside of passive learning reflects in part an attempt to deal with the curse of the J.D. degree. And so on.

Introducing the problem method into law school education isn't the issue. It has been introduced. The challenge is making it ubiquitous. Encountering the problem method in one or two courses does not change the way law students think, because they see those course as aberrations or, for some, as models of what they'd like to see in the rest of their course load. Only by making the problem method an every-day experience throughout all three years of law study can law schools attain the goal that one person quoted in the report said, ''If we get them to think of themselves as problem-solvers, that brings them closer to the realities of law practice." That, of course, requires law faculties to become convinced that the goal is to get their students "closer to the realities of law practice." That's one reason it will be interesting to see what the Harvard faculty does when the proposal comes to it for approval. I wonder how many will think, "Sure, I don't mind other faculty doing this, but I'm not going to change" (something I've heard spoken aloud more than once). The risk to those who think in that manner is that once a critical mass of law faculty adopt the problem method, students will wonder why the rest of the faculty isn't getting with the program.

But even a pervasive adoption of the problem method is insufficient. Faculty who use the problem method well will discover that it requires them to bring other areas of law into their discussion. I find it useless to teach the law of wills and trusts without considering the impact of divorce, or the general effect of taxation. Ultimately, the problem method will cause too much overlap between courses with an unavoidable decrease in depth and scope of coverage. That result would be no less counter-productive to the goal of preparing law students to be lawyers. What needs to happen is another of my favorite proposals, namely, the realignment of law school curriculum along transactional rather than doctrinal lines. Why not a first-year course that focuses on signing a lease and purchasing real property? At present, the applicable rules and analytical processes necessary to handle a real property purchase in practice are spread throughout courses in property, contracts, income taxation, state and local taxation, domestic relations law, wills and trusts, environmental law, torts, jurisdiction, remedies, negotiation, modern land transactions, drafting for real property transactions, secured transactions, and a few others. Rarely can the combination of requirements and course scheduling permit a law student to enroll in all those courses. Imagine the preparation for practice-world client assistance that can be provided by a course that integrates all the relevant doctrine. The problem? Who would or could teach it? The tax component alone deters almost all faculty. Or consider a course that dealt with the purchase and ownership of a boat or vehicle. Again, the lawyer needs to consider a wide range of issues that are not confined to one of the traditional first-year doctrinal courses that made sense when they were constructed in the late nineteenth century. But again, who would or could teach it? The proposal to arrange law curriculum in a transactional manner is a threat to many law faculty. Some would take it as a welcome challenge and bring themselves up to speed. Some.

All in all, bringing the problem method into its course array is, to paraphrase my email to my colleagues a few days ago, "a brilliant strategic move because it doesn't let anyone else take over as lead dog." Although other schools have been increasing the use of the problem method, Harvard is positioned to take credit for making it the wave of the future. That's the advantage of being Harvard. It's also the responsibility of being Harvard, and it's nice to see that school, after several decades of turmoil and false starts into other changes, live up to that responsibility.

The cynic in me must note that what ultimately will drive curricular change is the U.S. News and World Reports ranking. If the editors see fit to make use of the problem method and even transactional-focused curriculum positive factors in its convoluted equation, the bandwagon will fill rapidly. Can that happen? Yes. U.S. News surveys judges and practitioners, many of whom, because of their post-law-school client experiences, are supporters of the problem method and transactional-focused curriculum. How do I know? I communicate with law graduates almost every day. That's what I have heard and continue to hear. Harvard, it seems, is listening, too. Are the others?

In a Law.com article, "Law School: Make It Optional?," Professor George B. Shepherd of Emory University School of Law proposes a radical change not only in the requirement (in almost all states) that lawyers must have attended law school but also in the use of a bar exam to identify those who are qualified to practice law. After outlining each of his proposals and arguments, I will analyze them. Prof. Shepherd's points are numbered and my reactions are prefaced with "JEM:"

1. Law schools are very similar in terms of the number of years required (three), the size and cost-per-student of libraries, and the retention of full-time faculty who are more expensive than part-time teachers.

JEM: Essentially, this is true. However, the size of libraries is changing because the adoption of less expensive digital resources in place of more expensive paper volumes is progressing at different speeds among the various law schools.

2. Law schools are very similar because they comply with accreditation standards established by the American Bar Association (ABA), which are followed because almost all states require lawyers to have graduated from an accredited law school.

JEM: This, too, is pretty much true. Most law schools also belong to the American Association of Law Schools (AALS), which sets even tougher requirements for membership.

3. The accreditation standards, though defended by the ABA as "necessary to train students properly and to protect the public from law schools producing incompetent lawyers" do less in protecting the public interest and more in protecting the interests of law professors, law librarians, and the lawyers serving on the ABA accreditation committee.

JEM: I would like to see empirical data supporting this claim. The accreditation standards ensure that legal education will satisfy minimum requirements geared to developing competent attorneys. For example, it is a worthy goal to require that faculty have satisfied certain requirements so that students are properly educated. If there is a problem, and I tend to think that there is, it involves the failure of accreditation standards to require that law faculty bring not only outstanding educational achievement to the classroom but also meaningful practical experience.

4. Law faculty and librarians have an incentive to extend law school to as many years as possible in order to increase the number of full-time faculty who must be hired.

JEM: Much of the need for additional faculty reflects the increased enrollments in most law schools. If the number of students increases by 20 percent, the number of faculty must increase, especially for courses that are limited in enrollment size. Although the cost of adding a faculty member is marginal in terms of salary, it is significant in terms of office space. Most law schools, absent a building expansion, face finite constraints on faculty size. Another cause of the need for more faculty is the expansion of the number and types of courses that must be offered, but most law schools address a substantial portion of these needs by hiring adjunct faculty.

5. Lawyers serving on the accreditation committees are motivated by a desire to minimize competition by curtailing the number of persons admitted to law practice each year.

JEM: Even assuming one can determine motivation, the facts suggest that if this is indeed a goal, the accreditation committees are failing miserably. During the past decade, more than several law schools have been accredited, and enrollments have increased rather than decreased. Law school enrollment tends to increase when applications increase, and applications are dependent in part on the hiring rate of law school graduates. This semester, it seems as though all the students in my basic tax class are getting interviews and call-backs by the boatload, suggesting that lawyers in practice are trying to hire more lawyers.

6. Practicing lawyers manipulate bar examination pass rates to limit competition, taking advantage of a system installed during the Great Depression to prevent an "oversupply" of new lawyers.

JEM: Bar examination pass rates have been manipulated in certain instances, such as happened some years ago when Pennsylvania lowered the minimum passing score in order to increase the number of minority lawyers passing the bar examination. Pennsylvania has since raised the minimum passing score. There is no evidence that I have seen suggesting that the passing score is adjusted after some sort of determination by practitioners of how many attorneys ought to be admitted after a particular bar examination.

7. Students should have the choice of two, three, four, five, or more years of law school.

JEM: I'm all for increasing the number of years of law school, though I think the fourth year should permit changing the third year to year-long externships in the law practice world. The fifth year would then exist in the form of matriculation in an LL.M. Program. If three years of law school are more than enough, and two years is supposedly sufficient for some lawyers, then why are enrollments in LL.M. programs, and the establishment of those programs, mushrooming? Could it be that lawyers graduate from law school only to discover that they did not learn enough, do not understand enough, were not pushed enough, and suffer from trying to do six years of bachelors', masters' and doctoral work in three years because they did not come into a J.D. program with a prerequisite LL.B, and LL.M.?

8. Students should have the option of attending law schools with no libraries or small libraries, and only part-time faculty.

JEM: I was waiting for the option of attending law schools with no classes, but that comes later. I do agree, however, that there must be ways to reduce library resource costs by taking advantage of digital technology. What has been happening is a reduction in the space need to store paper materials, with the resulting space savings being transferred to computer facility and study room areas.

9. Law school should be optional, and the lawyering profession should be open to those who have not attended law school.

JEM: I'll agree if Prof. Shepherd agrees that medical school should be optional and that he'll be the first patient of a physician trained in some other manner. I could be persuaded, though, that a person without law school education should be permitted to take a bar examination, of the type I think it ought to be, and if the person passes, excellent. I predict, however, that almost no one without a law school education could pass the practice-focused, think-on-your-feet bar examination that needs to exist.

10. The bar examination should be eliminated because it is a "relatively recent experiment that has failed."

JEM: I totally disagree. If anything, bar examinations need to be toughened. Steps have been taken to make them more useful predictors of practice success, such as the "case project" that is part of the New Jersey bar examination. To the extent that the bar examination reflects the "memorization and spit back out" approach of many law school examinations, it simply separates good memorizers from bad memorizers and disadvantages those who are great problem solvers and problem preventers so long as they have access to the information. The bar examination, as deficient as it is, has not failed, because it has kept a lot of unqualified people from heading out to make other people's problems worse.

11. The unaccredited law schools in California offer a model that could be put in place in order to provide low-tuition legal education.

JEM: The California system is tied to one of the most brutal bar examinations in the country. The pass rate for the July 2004 examination was 69.4% for those graduating from ABA-accredited law schools in California, 65.8% for those graduating from ABA-accredited law schools in other states, 28.6% for those graduating from law schools not accredited by the ABA but approved by the California State bar Committee of Bar Examiners, and 9.1% for those who graduated from unaccredited law schools. See this site for more details. With this sort of track record, how are unaccredited law schools going to "sell themselves" to prospective students? Even if a student is seeking lower tuition, can the student safely assume that his or her intellectual skills are sufficient to beat the odds, or should the student assume that there is something about the program at an unaccredited school that will reduce the student's chances of passing? I'm all for reform of legal education, but I'm not for its destruction.

12. Students seeking to do sophisticated legal work at "elite law firms" could select "expensive, full-service law schools" and students seeking to "work with individuals on simpler matters, or ... to work as lawyers in local business or government" could select "a more basic law school."

JEM: This proposal assumes that one can do "simpler" legal work with less sophisticated legal education. The twist in this notion is the idea that legal work can be simple. The past several decades has brought an explosion of legislation, administrative regulation, and judicial decisions that have complicated every area of practice. A fine example can be found in the experiences of law students who, seeking less demanding and complicated legal education for reasons other than cheaper tuition, namely, preservation of G.P.A. and minimization of course load demands, decide to "not take tax." What happens? They discover that just about every area of practice requires an understanding of tax. Ask those domestic relations lawyers whose clients were disadvantaged because the spouse's lawyer, understanding tax, transferred burned out tax shelters in the property settlement after their clients succeeded in getting the transferee spouse almost to beg for the property. It's no wonder that domestic relations lawyers are among those enrolled in the Graduate Tax Program. Or perhaps one can propose that "simpler wills" can be drafted by those with more simplistic legal education. The common misperception that will drafting for clients with assets less than the applicable federal estate tax cut-off can be done without understanding tax overlooks several important factors. First, it is possible that between the day the "simple" will is drafted and the day the client dies that the client become wealthier and subject to estate tax. Second, almost all clients, even those with modest assets, need living trusts, powers of attorney, health care powers, etc. etc. Third, the income tax issues involved in estate planning exist for all clients. Estate planning and will drafting is an area of practice for which malpractice claims are among the highest. Unfortunately, there's not much left in law that is simple. I don't like that, but if I'm designing a system for educating and admitting lawyers to practice, I must accept the reality of complexity. And the idea that government lawyers can or should do their work with a "more basic law school" education is a scary thought. Very scary.

13. Eliminating accreditation would permit competition among law schools, causing some of the new, less expensive schools to offer higher quality education.

JEM: I've tried to think of the things that a law school would do that would cause it not to qualify for accreditation but yet cause its education to be of higher quality. Remove all paper materials from a library? Sorry, but until everything from the past is digitized, that's very bad. Remove all of the "library" in the information supply sense? Even worse. hire fewer faculty and increase class size? All education experts agree that educational quality diminishes as class size increases, no matter where one is on the spectrum whether K-12, undergraduate, or graduate. By increasing faculty size, we have been able to tri-section courses that once were bi-sectioned, thus cutting class sizes in the big courses from roughly 120 or 130 to 70 to 80. Having taught classes as large as 160 and as small as 15, I can vouch for the difference in quality of education for the student, because in the large classes they are less likely to ask for, and get, individual attention. Hire only adjuncts? That's a possibility, but remember that despite finding excellent adjuncts who remain affiliated with the school for years, law schools also have had to deal with adjuncts whose client demands prevented exam grading, too many canceled or rescheduled classes, and similar problems. Although digital technology has made it easier for students to interact with an adjunct professor, they still do not get from adjuncts the same educational mentoring they can obtain from faculty whose full-time responsibility is, at least theoretically, caring for the education of law students. About the only thing I can think of that would, perhaps, increase educational quality is the assignment of more courses to faculty members, cutting down the size of the faculty, but also cutting down or eliminating faculty "scholarship." There is a serious question of whether student tuition ought to be devoted to funding "scholarship," especially when the faculty member is teaching few students and publishing theoretical pieces of questionable value and interest to the legal profession. If, underneath all of Prof. Shepherd's proposals is a plea for a teaching-oriented law school, that's something that can be accomplished without eliminating law school as a law practice prerequisite and without eliminating the bar exam. On the other hand, it is essential for law faculty to research and write at least with respect to practice-oriented issues so that they remain competent in their areas of expertise. At best, we're talking about a slight reduction in faculty size and a slight reduction in costs, surely not of the magnitude Prof. Shepherd seeks.

14. States that choose to eliminate the requirements of bar exam passage and attendance at an accredited law school could offer other pathways into the profession, such as apprenticeships.

JEM: Been there, done that. I was fortunate to know, and still know, lawyers who made their way through the preceptorship requirement that Pennsylvania had in place "back before my time." It was a relic of the pre-1920s era for which Prof. Shepherd pines. It was abandoned. Why? It didn't work. If anything failed, as Prof. Shepherd claims is the case with the bar exam, it was preceptorship. Great concept. Inadequate in practice. True, sometimes the match was excellent, and worked to the benefit of attorney and new graduate. But often it was a case of "make work" or tagging along. Today, the experience that comes closest is the judicial clerkship, and if there were some way to have every law graduate do one I could be persuaded to go that route. The advantages of clerking are so well-known and so universally acknowledged that I'll omit singing the praises. Unfortunately, the business environment that permeates today's legal practice makes it difficult, if not impossible, not only financially but logistically, to re-create an apprenticeship program. Even assuming that the mentoring attorney is of high quality, there's no guarantee that the apprentice would be getting experience relevant to what the apprentice ends up doing in practice.

15. This proposal is a return to the system that existed before the 1920s, which was characterized by easily passed bar examinations such that an Abraham Lincoln could become a lawyer by passing a 10-minute oral bar exam.

JEM: When Abraham Lincoln was alive, it probably was possible to manifest one's knowledge of the law in 10 minutes. There was no income tax. There was no environmental law. There wasn't much of domestic relations law. There was no civil rights law and not much in the way of employment law. There was no aviation law. There were few statutes, hardly any regulations, and only occasional cases. Abraham Lincoln could handle a will or a land transfer with far less effort than is required of today's lawyers, some of whom sadly think they can get away with 19th century practice skills in a 21st century world. The transfer of land involves familiarity with a wide array of legal topics. My fourth cousin several times removed Abraham Lincoln would struggle to practice in today's world unless, aha, he went to law school and studied far more than he could hanging out in a law office. And it surely would take more than a ten-minute conversation to determine if he was up to par.

16. This proposal would create a system like those used in other "responsible professions, such as business and accounting."

JEM: Prof. Shepherd, why did you use as examples two of the most maligned professions of the late 20th and early 21st century? With apologies to the capable and honest accountants and entrepreneurs that I know, the last thing I, or others, want to see, is business and accounting being held up as models for lawyers.

17. Employers would have the choice of hiring lawyers with J.D. degrees or lawyers without J.D. degrees, depending on need.

JEM: About the only thing this would do for employers would be to pay lower salaries to these hypothetical un-degreed lawyers. But employers already do this. They hire paralegals. And that's pretty much the sort of work that un-degreed lawyers would be trusted to do.

18. This proposal would generate a "large increase in the number of lawyers," of which a "large proportion ... would be minorities."

JEM: This proposition presupposes several things. It presupposes a pool of qualified individuals who do not go to law school simply because of the high tuition, in spite of numerous scholarship and financial aid programs at almost all law schools designed to assist economically disadvantaged applicants, especially minorities. I don't think that pool of applicants exists. It also presupposes that individuals lacking the requisite intellectual skills for admission to, and successful completion of a law school education, or for the successful completion of a bar examination, would somehow become good lawyers by investing time being apprenticed. It would be helpful to have proof of such an outcome. I don't see it.

19. There are not enough lawyers in the nation, and this shortage causes high fees ("$60 per hour or more"), which blocks the poor and middle class from obtaining legal services.

JEM: I tend to agree that there are not enough lawyers. I do not think $60 per hour is a high fee. I pay that much or more for my auto mechanic, my lawn cutting service, my physician, my plumber, my heating and air conditioning specialist, and I would pay that much or more for snow removal services if I went that route. Legal fees are high, not because of the per-hour rate, but because of the number of hours required for a task. If an estate plan could be put together and all the documents drafted in two hours, $120 would be a bargain. Unfortunately, living in a highly regulated, complex, and litigious society, in which every possible outcome needs to be, and probably ought to be, taken into account, the simplest of estate plan arrangements is going to cost $250 or more, unless someone is trying to get by "on the cheap" or deliver less than what is being promised. Generally, we get what we pay for.

20. Increasing the supply of lawyers would drive hourly rates "down to $25 per hour or less for simple tasks." This rate is comparable to that charged "by qualified professionals with similar training ... in other fields, such as management of small businesses, bookkeeping, tax preparation, nursing, carpentry, plumbing, physical therapy and chiropractic."

JEM: I haven't paid a plumber $25 or less for many years. I haven't paid a nurse, physical therapist, or chiropractor, but from what I see, $25 is on the very low side. Nurses, for example, are in such demand, that those acting as independent contractors can charge more, except when Medicare or health care plans artificially push down their rates. Interestingly, reference to such plans brings to mind the pre-paid legal services plans, which have been, pretty much, dismal in their success.

21. Even though it admits lawyers with degrees from unaccredited schools, "California does not appear to have higher levels of lawyer malpractice or dishonesty."

JEM: If that is true, and I haven't been able to find statistics, probably because of confidentiality issues, it's because California admits very few lawyers from unaccredited schools. See the statistics under point 11, above.

22. Many people needing legal services do not need accreditation protection, because they are sophisticated. A lawyer's status as a graduate of an accredited law school has little influence on the hiring decision of a corporate legal department, because the decision will reflect the applicants' reputations, experience, and referrals. Admittedly, accreditation requirements do help protect the poor and unsophisticated, yet at the cost of reducing the supply of lawyers and raising legal fees.

JEM: I think there are too few graduates of unaccredited law schools to permit a conclusion as to what corporate legal departments, or other legal employers, would do if there were a large supply of such graduates. My guess, based on employer reaction to factors such as G.P.A., identify of school, and other characteristics, is that employers would hold a bias in favor of accredited law schools, whether that accreditation were mandatory or, as indicated in point 27, below, optional.

23. The risk of consumer harm posed by removing the accreditation and bar exam requirements would be offset by the establishment of reputable enterprises, with H&R Block as an example of how exploitation by unscrupulous tax return prepares is eliminated by the market.

JEM: The existence of H&R Block, even if one accepts Prof. Shepherd's description of it as the be-all and end-all of tax return preparation, has not done much to remove dishonest tax return preparers from the scene. Not that H&R Block should have the responsibility for doing so, but absent a controlled gateway, there's no guarantee that the honest will drive out the dishonest. It's for this reason that Congress passed legislation regulating paid tax return prepares and the IRS continues to seek ways to enforce those rules and to advocate additional protections. Oh, and as for H&R Block, visit, for example, this site, and make up your own mind. I worked for H&R Block years ago, and I am not convinced that being an apprentice there is the best way or even a good way to learn how to do tax returns as well as they need to be done.

24. Lawyer incompetence and dishonesty should be punished "more severely" and punishment should not be limited to the most egregious violations.

JEM: I totally agree. But this can be done without eliminating the bar exam or removing accreditation of law schools.

25. Lawyers should be policed not by other lawyers but by others, perhaps detectives and attorneys hired by state governments to investigate and prosecute lawyer misconduct.

JEM: I'm a wee bit confused by the rejection of self-policing coupled with the idea of hiring attorneys to investigate lawyer misdeeds. Perhaps it has something to do with moving lawyer regulation from the lawyers who now handle it to a different government agency. If so, there are serious issues, because the courts regulate who practices before them, and so moving that task to the executive branch of a state government might raise separation of powers issues in states where the constitutions resemble the U.S. Constitution in this regard. On the other hand, if the proposal is to add non-lawyers to lawyer disciplinary boards, why not? I think it's been done in some states, and it might advance the goal of cracking down on lawyers who violate the rules.

26. States without mandatory bar examination passage requirements could set up voluntary bar examinations through which lawyers could obtain specialization certificates. Uncertified lawyers could be hired to do simple tasks.

JEM: And what would the un-certified, non-specialist lawyer do? Tax? Nah, need a certificate. Criminal law? Best not, for mistakes here can be a matter of life and death. Environmental law? Whoa, almost as complex as tax. Securities work? Ditto. Will drafting? No way, considering how prone this area is to malpractice. Admiralty? Ha. Wait. They'd do "simple tasks." What simple task? Does that mean practicing law as would be done by someone who wanted courses limited to "main rules," as I roundly criticized a few months ago? If anything, in addition to three (or an externship-enhanced four) year law school education, most lawyers need additional education and specialization. That, however, is a matter of making continuing legal education a rigorous exercise that is accompanied by tests and examinations. After all, with the removal of law school (and its examinations) and the bar exam, legal education under Prof. Shepherd's vision would become one giant CLE, which too often is characterized by attending lawyers who are reading novels, knitting, doing crossword puzzles, sleeping, and otherwise not digging in. On this I speak from personal experience both as an attendee and as a provider.

27. Law school accreditation could continue as an option for law schools not concerned with reducing costs and setting lower tuition.

JEM: And every university-affiliated law school would continue to seek accreditation. Why? In part because of university requirements and accreditation of other programs (unless Prof. Shepherd also wants to remove accreditation of other university schools, such as medical schools, which, after all, following his logic, would make sense because there are insufficient doctors, medical costs are high, and many people fail to get adequate medical care, and which would make available physicians with only "basic medical education.") And in part because of the prestige, the same motivation that has brought most law schools to membership in the AALS.

28. Those seeking to become lawyers could choose among accredited and unaccredited law schools.

JEM: Those seeking to become lawyers have that choice today. They vote with their feet. They seek admission at the accredited schools. Those who end up at the unaccredited schools have all sorts of difficulty becoming lawyers, not because the schools are per se deficient but because the students haven't quite put together what it takes to practice as a lawyer in 21st century America.

In conclusion, though Prof. Shepherd makes some good points, and I agree that student tuition ought not be funding some of the "scholarship" being generated by law schools through the efforts of those whose focus is insufficiently directed toward good teaching, I nonetheless think it would be ill-advised to urge states to follow California's example and not require attendance at an accredited law school. The nation does not need 49 more states doing what California does. And I think it would be disastrous to eliminate bar examinations as a prerequisite to admission to practice. To the contrary, there ought to be continuing bar examinations coupled with continuing legal education requirements. After all, the law changes, and I've seen enough incompetence among practitioners to fear the reduction of, rather than an increase in, education and testing. Ultimately, the effort should be to reform legal education rather than tossing it into the dust-bin of history to be replaced by antiquated practices long past their time.