MauledAgain

Two developments entering my consciousness during the past several days have coalesced into a hopefully coherent thought about the future of legal education. One is the news in last Friday's Philadelphia Inquirer that Drexel University plans to open a law school, and a critical "we don't need more lawyers" letter to the editor in today's edition of that paper. The other is an on-going discussion on the lawprof listserv about the advantages and disadvantages of seeing one's published articles sold by Amazon and other on-line vendors, the wisdom of seeking royalties, and strategies for accomplishing one's goals in this regard.

For those who are not lawyers or law students, and even for some who are, it helps to understand how legal education is structured in terms of goals, resource allocation, competition for students, placement of graduates, rankings, and other economic factors. Although not all agree with the model, a law school can be seen as an academy of law faculty who educate those who want a legal education. Not every law student plans to be a lawyer, and many who planned to be a lawyer discover that their interests, skills, disposition, and priorities inspire a move to other careers in which a legal education serves them well. That is why I carefully distinguish between "those who want to be lawyers" and "those who want a legal education," choosing the latter rather than the former.

Of course, no matter the immediate or long-term goal, because almost all law school graduates do practice law at least for some period of time, law schools should direct their resources to the preparation of law students for law practice. Law practice includes not only the familiar law firm environment, but judicial clerkships, corporate legal departments, government agencies, and non-profit advocacy institutions. In theory, at least, law school graduates emerge after three years of education ready to sit for a bar exam and enter practice. In practice, pun intended, law graduates emerge ready to sit for a bar exam and enter into a position where they will be apprenticed, guided, and nurtured by a mentor. In recent years, as business concerns (i.e., profits) have overtaken the profession of law, fewer attorneys have the time or resources to serve as mentors. The impact of this unfortunate development is beginning to manifest itself in what I, and some others, at least, see as a decline in the quality of lawyering and lawyer work product.

Each year, approximately 35,000 to 40,000 students graduate from law schools. There are slightly more than 1,000,000 lawyers in the United States. So it is easy to understand the "why another law school?" and "we don't need more lawyers" reaction to the news that Drexel University plans to open a law school. A closer look, though, suggests that there are several reasons why more lawyers and more law schools are needed.

First, although 35,000 to 40,000 new lawyers enter the ranks each year, close to that number leave each year. Some die. Some retire. Some switch to other professions and careers. Some take extended leaves to raise families. A few are disbarred. So the total number of lawyers is not growing such that after 20 years another 1,000,000 lawyers will appear. After all, law schools have been graduating 30,000 or more lawyers for the past 35 years, and yet added to the number of lawyers in 1970, there would be almost 2,000,000 lawyers. But there aren't, for the simple reason that lawyers also are leaving the profession.

Second, the population of the country has been increasing. Even if one assumes that the per capita need for legal services remains the same, and even adjusting for the efficiencies of technology, more lawyers are needed simply for the delivery of legal services to hold steady.

Third, the need for legal services is growing at a faster pace than legal services can be delivered. Think of all the individuals and non-profit institutions that need legal services and don't get them. Even when on best behavior, the population needs help with wills, healthcare acquisition, tax planning, workplace rights enforcement, environmental cleanup efforts, business formation, business liquidations, bankruptcy, and the list goes on and on. And, of course, some folks aren't on best behavior, so there is need for criminal defense assistance and prosecutorial efforts. Accidents happen, and people who don't know their rights end up on the short side of the ledger. We live in a litigious society. It isn't because there are lawyers or too many lawyers. It's because the "me first" and "my rights are more special than yours" culture that has permeated society makes us more aware of rights, the deprivation of rights, and the assertion of rights than were our grandparents.

That's not to say that there isn't a need for a "different kind" of lawyer, or for a realignment of how lawyers presently are arrayed in the hierarchy of law practice. Lawyers with wealthy clients do well, and get much of the attention that causes the "no more lawyers" and "we hate lawyers" reactions that percolate through society. On the other hand, there are many lawyers trying to eke by on $25,000 or $30,000 a year, which may sound comfortable to some folks until one takes into account that they are trying to pay back education loans at the rate of $12,000 a year. And that, shortly, will bring us back to legal education.

Keep in mind that what adds to legal fees is the cost of taking along a first or second year associate who is doing more learning than producing, and whose presence at the firm and whose need for mentoring is salved by the fact his or her billable rate exceeds by far his or her hourly-allocated compensation. Although in recent years some clients have become resistant to paying for the services of a "bag toter" there still are many instances in which the contributions of the first, second, or even third-year associate are not what they could be had the legal education in law school been different. And with that, back we go to legal education.

From what I understand reading the news reports, Drexel intends to produce a "different kind" of law graduate. One that, I suppose, and hope, will make for a "different kind" of lawyer. Or at least a graduate who can get untracked more quickly. The plan is to take Drexel's renowned and successful co-op program, used for years in engineering, and adapt it for law students. Each year, students would be in the classroom for 26 weeks, and in law offices for the other 26 weeks. In traditional law schools, students are in the classroom for 28 weeks each year, plus 4 weeks for exams. No law school other than Northeastern University (Boston) takes this practical approach to legal education.

Years ago, a person could not be a lawyer, that is, could not sit for the bar examination, until the person served what could be called an internship with an experienced lawyer. Of course, they ended up working for very low salaries, and eventually the requirement was dropped because the number of law graduates was more than the existing bar could handle. It's unfortunate, because law schools did not rush to fill the void. Decades later, despite the objections of the traditionalists, clinics were established at law schools to provide assistance to people otherwise lacking legal assistance, and this provided at least a small handful of law students an opportunity to set aside books and theory and meet clients and reality. Providing a clinic experience to all law students is expensive. The faculty-student ratio needs to be kept at the order of 8 or 10 to 1, which would require at least 10 clinician faculty for the typical law school, assuming the experience was a one-semester experience.

If Drexel can work out in law what it has in engineering, which is lining up employers to accept a student for a 6-month internship (or externship if the law school terminology is used), it would close the gap that most practitioners assert, and a few academics admit, exists between law school and law practice. It also is possible that Drexel would enter into arrangements with practicing attorneys to mentor a certain number of students for 6 months, and to teach during the other 6 months. This sort of shift from the traditional law school faculty alignment (full-time faculty must account for most of the student contact hours, and the use of adjuncts (practitioners who teach a course) is best limited to specialty areas (e.g., patents, trial practice)). Considering that Drexel plans to keep its tuition below that at the other area law schools, how will it make this work financially? I'm not the first to ask the question. I'm certain it already has been raised, if nowhere else than at Drexel.

Aside from a few heavily endowed law schools and state-supported law schools, the principal source of law school funding is tuition. In many schools tuition provides as much as 98% of the law school budget. Law school tuition averages a bit more than does undergraduate education. Think $30,000 (aside from other costs), sometimes $25,000, sometimes $35,000, and for state-supported schools subtract roughly $10,000. For most people, that's a significant expense. Don't forget to multiply by three. Yet applications for admission to law schools continue to climb, sometimes rapidly, occasionally more slowly, every once in a while pausing for a "flattening" of the year-to-year line in the visual graph used to illustrate the growth. Deans and budget officers are very skilled at figuring out how much of an annual tuition increase can be "absorbed" without cutting back demand to the point that law schools would struggle to find qualified applicants.

What do law schools do with the tuition and other income? They spend it. There are four major areas of expenses: faculty salaries and benefits, information technology (library and computers), staff salaries and benefits, and physical plant maintenance. In most instances, the university with which the law school is affiliated takes a cut, to cover overhead for things such as utilities and security. What makes this "work" in terms of balancing the budget is the fact that the typical student contact hour load for a law school faculty member is 12 credit hours per year, with about 160 students in 4 or 5 courses during the year (so a faculty of 40, each teaching 4.5 classes of 35 students, would teach rougly 6400 "student enrollments" in those classes, which would be what a 700-student school would need with each student enrolled in 4 or 5 courses each semester). Though the credit hours vary slightly, with some as low as 9 and some as high as 16, "student enrollments" vary widely, from as few as 40 per year to as many as 450 or more. That wouldn't work well in a medical school, or a dental school, or in most graduate programs. It works well at law schools because much of the teaching is lecture hall rather than one-on-one interaction. That's why clinics pose a challenge. Although it is possible to teach a substantive area course, such as tax or decedents, to a classroom of 90 or even 165 (I've done that), there's no way a clinic could be operated with one faculty member guiding that many students. Other graduate programs generally have much lower enrollment, and make the finances work by having graduate students teach undergraduate courses (thus freeing up resources), or, in the case of medical and similar schools, being affilated with teaching hospitals to whom the faculty, with their students in tow, provide services for compensation, which is pooled as a school resource.

Law faculty, though, do more than teach. Many are involved in public service activities. These include serving on boards of non-profit institutions, providing assistance to bar associations and their committees, giving legislative testimony, serving as counsellors to the indigent, working with law reform commissions, etc. But the most substantial non-teaching activity, for most faculty, is writing. Specifically, the writing of scholarship. Originally, law faculty wrote articles that were published by their schools, but very quickly the practice became one of having articles published in another school's law review. Law reviews, unlike journals in most other disciplines, were not peer-reviewed, but were (and still are) edited by second and third year law students. More of that weird phenomenon in a moment. As a law school's reputation began to get linked to the prestige of the other law schools in whose law reviews its faculty published, law faculty became subject to the ritual of "submitting" articles to 20-something students at other schools, whose decisions could (and still do) determine the publishing success of the faculty member, influence the reputation of the faculty member's school, and make or break the tenure decision with respect to that faculty member. Why? Tenure is not granted to law faculty unless, among other things, they have established themselves as scholars, which means, have managed to get published in student-edited law school law reviews. In the meantime, the cost of publishing those law reviews has been climbing.

Oh, what is tenure? Yes, it's an aside, but it's important that I don't assume readers know. As a practical matter, once a faculty member has tenure, the university cannot dismiss that person, that is, cannot refuse to renew the contract, unless the person commits a grievous violation of rules or unless the university downsizes or terminates a program. Tenure is something that exists almost nowhere else, namely, a job for life. After all, until now, very few law schools have closed, and downsizing for universities generally can be accomplished through the normal course of retirement and early retirement incentives.

Well, then, you ask, "Once someone gets tenure, what's the incentive?" For years, the answer generally was professional pride. Perhaps a faculty member had a "need" to write. I'm someone like that. But it was not uncommon for a faculty member's publishing to end once tenure was obtained. There even were schools where tenure was obtained without a need for publishing, but that practice ended, at the latest, in the early 1980s. In the meantime, U.S. News and World Reports, and some others, began ranking law schools, using publication (or its reputational effect) as a significant factor. What's a Dean to do? Simple. Design a merit or incentive compensation system, that adds a small amount to a salary, or is paid as a one-time bonus for having published. Studies show that these plans did have some effect.

"But doesn't that distract the faculty member from teaching?" is a common question. It's a good question. In theory, a person's scholarship and publications would dovetail with the courses he or she is teaching, thus enriching the students. As a practical matter, the disconnect is frequent and wide. Students are learning at basic levels, and faculty are writing at very advanced levels on narrow areas. Some faculty take the understandable position that one can do much damage as a teacher by taking one's law review article into a course, using days to cover the topic in fine detail, at the expense of other topics, when other faculty teaching the same course would not allot that topic more than 5 or 10 minutes. In other words, it's not good teaching, other than in a small seminar, to take students in a general scope course onto a month-long side trip touring a narrow topic thrashed out in a law review article.

Traditionally, faculty members are not paid by law reviews for the article. If faculty get merit or incentive raises or payments, they're being paid by students' tuition dollars or, in some instances, by the income of endowed funds. Recently though, someone discovered that Amazon.com and some other on-line vendors were selling law review articles and pocketing the proceeds or perhaps sharing those proceeds with the law review that originally published the article. Is that right? Is that fair? It depends on what the author has negotiated in terms of the copyright and licensing rights. Some faculty report having little leverage to bargain, and are essentially being told that if they want to publish, they must accept the law review's terms. Others report that they have been able to get language that satisfies their concerns. There's insufficient data at the moment to determine if there is a correlation between the faculty member's tenure status and his or her negotiating leverage.

Needless to say, the idea that law review articles are being sold, and faculty are not sharing in the proceeds, has generated much discussion. Some have pointed out that having one's article made available to the widest possible audience is the best return. Others ask who's buying, considering that very few judges and practicing lawyers read law review articles, and those who do have free access to the pool of articles. My response was that a book I publish is offered on Amazon for a higher price than I charge. The free market may be free but it's also weird.

Into this mix throw in one more factor. When law faculty (or practicing lawyers) write books, they earn royalties. To date, I'm unaware of any law school that requires its faculty to turn over royalty income the way medical school faculty pool the revenues from the medical services they provide to the patients in the teaching hospital. Not that it hasn't been proposed, almost always by the faculty who haven't produced a royalty-generating book. To put this in perspective, we're not talking John Grisham book and film right royalties here. No one has ever proposed turning one of my tax books into a movie. Egads! My only chance would be to plug the thing as dealing with a three letter word ending in x, which supposedly sells, but they'd be onto me within 30 seconds.

This explains one reaction that law faculty expect royalties from books but not from law review articles. The distinction is, perhaps, more one of tradition than substance or policy.

Against this long but hopefully interesting background, I set the words I shared earlier today with law professors across the country:

Why would we write anything for free? We don't.

Generally, we are paid by publishers for writing books. Sometimes we are paid by publishers for writing articles. It happens.

We are paid salary to write whatever we write for our courses (which varies considerably from those who prepare their own unpublished materials as the sole resource, through those who prepare supplemental materials, to those who go off-the-shelf).

We are paid salary to write articles. Supposedly. Sometimes. If someone has the option to write books and chooses to do so in lieu of writing articles, an interesting question arises. Should they return some salary for failure to write articles? Does the school accept books as worthy alternatives to articles? (Usually) Are the royalties turned over to the school? (Hardly) Or, could it be that the salary is for doing things that put the school on the map (and in recent years, earn points, statistics, votes, or whatever goes into those absurd rankings)? Generally, in recent years law schools have been tossing rather minimal "merit" raises designed to encourage writing. Interesting concept. No one who is paid by a publisher to write seems to need as much encouragement as those who aren't inclined to write for the pure joy of writing.

Personally, if someone wants to pay me to write, it tells me a lot about what they think of my work. It's surely a lot more fun than peddling and begging 22-year-olds to "accept" my work product and then do things to it that may or may not be good for it (including the bane of those who write in quick-changing areas, delay). Interestingly, my blog (for which no one pays me) does at least as much to put me (and the school, to a lesser extent) on the map than any other writing (and considering that the only other blog at the moment among the law faculty here is the Dean's, that makes me wonder where "merit" is heading or at least how strenuously I should argue the point when it is more a matter of principle than dollars).

For years, the cost of publishing law reviews has been borne by law schools, or, more accurately, by law students. Aside from a few places that have law review endowments, or that otherwise are heavily endowed for scholarship, tuition dollars pay the salaries of the unpaid article writers and pay the costs of publishing the law review that aren't covered by subscription revenue. The Internet reduces the cost of publishing. Why would any journal publisher need for some other outfit (other than a contracted web page programmer) to do Internet publishing of its output? Yes, there always are "agents" looking for a cut, but what "value added" is provided by Amazon or HeinOnline that is worth what they're taking?

Ultimately, marketplace economics will dominate law authorship. The question is whether it will be a free market, a corporate-dominated market, a government-regulated market, or something else. The division in the law author world between those who write for compensation, and those who don't or can't or won't (with an acknowledgement that there are those who put a foot in each camp) will sharpen. The murmurs of "share the royalties" will begin to resound as a chorus. There are some things on the horizon that I'm going to guess are not on the radar screen of many (most?) law faculty.

And eventually law students will ask why they are paying tuition dollars to subsidize writing that they see as having little direct impact on what they think they are buying. Right or wrong, law student
perception in a competitive marketplace will have an impact. The law schools that begin the shift from the "old law school model" will gain an advantage once they learn to sell themselves based on the
accomplishments of graduates and not the computational grindings of magazine surveys and ratings. The advantage? A combination of lower tuition and increased teaching resources. The challenge? The "old law school model" law schools will use accreditation withholding as a lever to salvage the guild.

And there were those who said digital technology and the Internet would have so little impact on what we do. Right.

And this brings me back to Drexel University's proposal for a new law school that focuses on law practice internships. Because it would be following Northeastern into a different educational environment and developing a new 21st century model of law schools, would it care about the rankings of the "old law school model" law schools in U.S. News and World Reports? Will it want its faculty devoting time and resources to publishing law review articles that pretty much are read by a few dozen or sometimes a few hundred other law professors, and that unlike publications for which the market provides a recompense, are rarely read thousands or tens of thousands of times? Will Drexel prefer that its faculty put in 8 to 10 hours "in the classroom" each semester (instead of 5 to 7) so that students get a more personalized experience and individualized attention? Will Drexel succeed in its presumed public relations campaign to demonstrate that lower tuition can mean higher quality because resources are not directed to law review scholarship? If so, will Drexel manage to attract students who would otherwise attend other law schools rather than dipping into those in the applicant pool who currently don't get admitted to any law school? Will prospective students give more weight to practical experience than to U.S. News rankings? Will the idea of paying tuition used in part to finance the writing of little-read law review articles offend students to the point that they will choose Drexel over traditional law schools? Will law firms, weary of carrying the burden of closing the gap between traditional legal education and practice, turn to Drexel as a source of experienced, interned, ready-to-go law graduates? Can Drexel succeed in turning out students who bring a fresh wave of change throughout the legal profession? If time proves the answers to these questions to be yes, legal education may undergo its biggest shakeup since Christopher Columbus Langdell decided that reading cases in a classroom was a better way to prepare for the practice of law than working in a law office. Oh, that was more than 100 years ago.

When the Drexel news broke, someone who has heard my monologues on legal education over the years said to me, "They're using your model." I replied that it wasn't my model, because it isn't. My model may be different in some ways but Drexel has not released, and probably hasn't made decisions with respect to, details sufficient to determine how close its plans would come to my model. Publicly, the other area law schools have been polite and reserved in reaction to Drexel's plans, wishing the institution well, pointing out that it takes years to build a reputation, and describing the competition for students as not a zero-sum game. I wonder what is being said behind the closed doors. I wonder who, if anyone, sees writing on the wall.

The current recession, even if it doesn't grow into a depression, is a transformative one. When, and perhaps that should be if, the economy regains vibrancy and robustness, it will be an economy very different from the one that has tumbled wildly out of control in a downward spiral. There will be new industries and professions, there will be abandoned industries and professions, and there will be countless industries and professions adapted to new products and techniques. For example, if American automakers survive, their products will be very different from what they cranked out during the past fifty years. Similarly, the home construction industry will build smaller homes using energy-efficient materials in an environmentally responsible manner.

Though surely there are others who can offer predictions with respect to these and other industries, there is one area of the economy to which my professional life is very connected. I speak of law, in two manifestations, law practice and legal education. Specifically, it is the relationship between those two segments of law that need to be examined. I predict that because one is changing rapidly, the other needs to, and will, change dramatically.

By the middle of the current decade, the practice of law had evolved into a profession that dished out salaries north of $150,000 to law graduates with little or no practice experience, coming out of schools that may or may have not provided a clinic experience opportunity and that often emphasized courses focusing on philosophy, sociology, and other disciplines taught by academicians who found a home in law school by adding "Law And" to the course title. Law students continued to sit in classes set apart by doctrinal divisions with little relevance to legal practice. As the gap between law school and practice started to widen during the latter decades of the twentieth century, state and local bar associations initiated a variety of "Bridge the Gap" programs and similar efforts to ease the transition from law school to law practice. In the meantime, law firms found themselves with new associates in greater need of training but with decreasing opportunities to do the training. Not only did the need for partners and senior associates to increase their own billable hours reduce the time they could devote to mentoring recent graduates, they provided a more efficient personnel resource for doing client work because even though their hourly rates were higher than those of new hires, the reduction in the number of hours they required to accomplish a client task more than offset that difference. First-year associates making six-figure salaries need to be billed out at very high hourly rates in order for the firm to avoid losing money. Unfortunately, because they are so unprepared to do much of what need to be done, young associates end up taking two, three, or more times as many hours to do the task because of the steep learning curve that they face. Because of client complaints, billing partners often chopped a good chunk of these hours out of the invoice.

The onset of the current economic tailspin accelerated client concerns about invoices reflecting charges that were higher than they would have been had the work been done by someone not requiring additional hours of time because of inadequate preparation for practice. Other clients, for business reasons, scaled back recourse to legal advice. Still other clients went out of business. Law firm revenues have dropped, and massive layoffs have rippled throughout the law practice world. In turn, this has caused law firms to do one or more of several things with respect to hiring law graduates.

Some law firms aren't hiring. They have barely enough work to feed their current employees. Some firms are cutting out summer associate positions, while others are scaling the summer associate program back, in some instances by reducing the number of summer associates and in other instances by reducing the number of weeks. In one instance, the number of weeks has been cut 40 percent. Some law firms are withdrawing offers, causing hindsight distress for students who had turned down offers at other firms that might not have been withdrawn. More and more firms are telling 2009 graduates to show up in September 2010, and the rumor mill has it that these firms plan to tell any 2010 hires to show up in 2011. That, of course, assumes there will be hiring in 2011. Several firms have offered to pay small monthly stipends to these "suspended" hires if they work pro bono for an appropriate agency. Some firms are eliminating the hiring of law school graduates, choosing instead to hire lawyers with several years of practice. The reasoning is sound. Why pay to educate and develop an attorney when it's cheaper to let someone else take the economic loss of doing so? For students who can find positions as law clerks and government agency employees, this change won't be a significant one, but the number of students who will find such positions likely will not increase. As budget cuts ripple through governments, it is more likely that the number of these positions will decrease.

So why does this matter to legal education? It matters because it is one more nail in the coffin of legal education as we know it. The current economic downturn affects three segments of law school revenue. Schools that receive state funding have already faced big cuts, and will encounter more. Schools that use endowment income are suffering as are other institutions that rely on endowment income, and the bad news is that available endowment income will continue to fall, because the income determinations lag behind the market value changes. Schools that rely on tuition, which pretty much is every law school, must deal with the very real prospect of dwindling applicants. Applications will continue to decline because the impact of the recession, and its effect on law practice economics, will change the results of applying the financial equation that is a major component of the decision to attend or not attend law school. At best, law schools will be competing for fewer qualified applicants, and where those applicants end up studying will reflect not only law school reputation but the tuition charged by particular law schools.

The law school attendance decision financial equation, in English rather than mathematical terms, is simply this: Does it make sense to give up three years of salary and pay out law school tuition, either up front or through debt repayment, in exchange for the increased income expected to be earned by reason of having a law school education? When students in the now defunct Digital Legal Practice Skills course created spreadsheets to answer this question, the results surprised them. Unless they had a realistic prospect of earning significantly more income through having a law school education or unless their other employment opportunities offered rather low income prospects, law school made no sense financially. The transformation of law practice suggests that the financial advantage of a law school education will diminish, because law firms cannot sustain the huge salaries that have been paid in recent years to law school graduates, for the simple reason that the client revenue sources have shrunk and are being more carefully stewarded. Compounding the problem is the credit crunch, which puts at least some would-be law school applicants into a position of financial impossibility.

When prospective law school students begin to realize that the chances of getting a job upon graduation have fallen to the levels faced by college graduates with degrees in those majors that have persistently not been rewarded by the economy, even some of the more idealistic of them will view a J.D. degree as an over-priced ticket for admission to what at best is an employment lottery. When they 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. Who else will be singing? Perhaps those law school graduates and current law students, who already have invested $150,000 or more in their education, only to find that they would have done better investing that money in the stock market.

Ultimately, the outcome will be some combination of a reduction in the number of law schools and a transformation of what transpires at those that survive. To make the financial equation work for applicants, law school tuition must be reduced. For that to occur, law schools must cut their biggest expense, which is total faculty salaries. Total faculty salaries can be cut through some combination of a reduced number of faculty positions and reduced salaries. The former approach would require an increase in the number of credit hours taught by each faculty member. The trend of cutting faculty credit hours, chiefly for purposes of permitting faculty to write scholarship "for the benefit of other scholars," as one visiting faculty member put it, will need to be reversed. This is not a new thought from me, for I have been asking why students should subsidize faculty scholarship ever since the rankings chase heated up several decades ago.

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.

A report this morning describes the Florida Supreme Court's plans to make it more difficult for applicants to pass the state bar exam by raising the minimum passing score. Other states are considering similar changes.

Why?

The Florida argument is that the existing minimum passing score does not ensure minimal competence on the part of Florida lawyers. The author of this morning's report questions whether bar examination are an "adequate measure of attorney competence." He suggests that the actual motive is protection of existing lawyers' income streams by curtailing challenges from new attorneys.

The author of the report attacks the Florida plan by pointing out that the failure rate in Florida has more than doubled since 1994, and that no studies have been undertaken to examine correlations between bar examination scores and malpractice claims. He contends that many bar examinations are "badly flawed," in part because essay questions cover too many topics, often focus on esoteric points of law, and sometimes are wrong. He argues that the bar examiners should not expect of new applicants what most licensed practitioners could not do, which is to pass a competency test covering a dozen and a half or more subjects, without "substantial preparation." He points out that bar exam grading, using the same multistate portion of the exams, generates failure rates that vary by more than 50 percent in 46 states and by more than 100 percent in 27 states.

The author of the report alleges that "most law schools have modified curricula, strengthened clinical programs, reduced class sizes and student-faculty ratios, and placed greater emphasis on writing skills" and that most law deans would characterize current legal education as having a higher quality than legal education of yesteryear. He continues, "Law schools across the country can demonstrate many ways in which the training of law students is increasingly tied to practice -- through supervised internships, the effective use of practicing attorneys and judges as adjunct professors and the enhanced use of clinical programs and simulation courses."

The author of the report states without reservation: "Legal education prepares students for the practice of law; it is the bar examinations that are out of touch."

I agree with the author's concerns, but I disagree with the premises and the analysis underlying his identification of the problem as fully the result of flawed bar examinations. Yes, there is a problem when pass/fail percentages on the same multistate examination differ so much from state to state. Yes, a state can decide that only applicants answering at least n questions correctly on the multistate portion can be admitted (assuming they do sufficiently well on the rest of the examination), while another state can set the minimum at n + m. In a federal republic, one state can decide that competence requires something more than another state does. This happens not only in law, but in all sorts of other licensed professions and activities.

Would it make sense to impose a national standard of competence on the multistate portion of the bar exam? One can make a good argument to do so. But one can also ask, "What is the point of measuring something by a national standard when bar admissions are state-by-state?" Practicing law in some states is more challenging than practicing in other states because the complexity of state law varies from state to state. Why should State A be required to accept as competent someone who is so characterized by State B if State B has a lower expectation of what attorneys should be capable of doing? Although one can imagine states negotiating some common passing level (of x correct questions), reality tells us that they would end up reduced to the lowest common denominator. Whenever that happens, and it happens so much in post-modern society that it has become a hallmark of early 21st century American culture, everyone, including the pretensively qualified individual, suffers.

I agree that bar examinations need to do something other than test memorization skills, the ability to handle multiple choice questions deftly, and the talent for applying the useless IRAC approach (issue, rules, application, conclusion) to essay questions. Some state bar examiners have already introduced other ways of testing skills, by shifting from law-school-imitative devices to practice world simulations. Applicants in these states are given case files, replicating the information that a junior associate would be handed in practice, and asked to work through the matter.

Are the suggestions to make bar admission more difficult driven by profit concerns rather than a genuine concern for protection of the public? On this question the author of the report raises a point that I am unable to rebut. He very well may be right. If he is, it makes the rest of the analysis academic.

The author's concern that bar passing rates are already dropping, even before the raising of the required "correct answer number," may not be, though, a reflection of a guild limiting its membership, but an indication that measured against absolute standards, law school graduates are less capable of doing what the bar examination requires. Why? Most law schools now grade on a relative basis rather than against a standard. Course content has been reduced, the number of required pages of reading has shrunk, grade inflation runs rampant, and few law students are permitted to flunk out.

It is when the author states without reservation that legal education prepares students for the practice of law that I must disagree. I wish that were the case. I think legal education SHOULD prepare students for the practice of law. Most academics, however, resist the notion of creating "trade schools," and insist that they are teaching students to "think like lawyers" (one, but only one, of the skills needed for legal practice). Some academics and schools support clinics and externships, but unfortunately those experiences are limited and too many students do not get the opportunity. There are drafting courses, some of which are very useful and some of which are so theoretical that they would cause practitioners to cringe. Adjuncts who teach specialty course or litigation courses generally bring practice world experience into the classroom, but sometimes adjuncts try to emulate full-time faculty because their ultimate objective is to become a full-time member of a law faculty.

Why do I think that it is incorrect to state without reservation that legal education is preparing students for the practice of law? First, more and more practitioners are expressing and demonstrating a reluctance to hire graduates because they don't want to invest the resources required to train the person. They prefer to hire laterals, thus taking advantage of someone else's investment in the employee. That is why taking a judicial clerkship, for example, is a wise move for a law graduate, but unfortunately there are not as many judicial clerkships available as there are law graduates. Second, I continue to hear from students that I am the first, and from graduates, the only, member of the faculty outside of a clinic or the legal profession course to use the word "client." That doesn't mean no one else is discussing the client or that the situation is the same at other law schools, but that law students can work their way through law school in a client vacuum. Third, although clinics and externships have increased in number, so, too, have the courses that cover subjects not examined on the bar exam, not present in the consciousness of practitioners, and useful only in indirect ways to a student's ability to practice law. Fourth, I have been told, by law faculty, that law faculty are not training practitioners but people who use the law, such as lobbyists, academics, and public policy wonks. Teaching with those goals changes what the graduate takes into the bar exam. Fifth, the existence of bar review courses and the content that they provide, though perhaps proving the author's point that the bar examinations are testing a different set of legal information, demonstrates, at least to me, that law graduates are doing more than review, and are catching up on topics not visited in law school, perhaps for reasons related to my third point.

States have eliminated the preceptorship programs that at one time were integral parts of bar admission. A law graduate would go under the tutelage of an experienced attorney for a period of time. It makes sense, and where traces of those programs exist, such as judicial clerkships or the rare instance of a one-on-one relationship between a small town practitioner and a promising law graduate, they prove the value of such programs.

These programs don't exist because they cost too much. Law, unfortunately, has become a business, and that has tarnished its professional stature. I leave for another day an exploration of that phenomenon, but suffice it to say that one of the many disadvantages to the painting of law with a business brush is the lack of pervasive preceptorship and similar mentoring. Yes, a few lawyers are trying to create mentoring programs, but they're swimming upstream.

The practice of law requires much more than what bar examinations test. Some requirements, such as good character, are handled through other means, such as investigations, and because the author of the report focuses on the competence issue rather than the character issue, I leave for another day the discussion of whether the bar's character screening process is sufficient and efficient.

The only way to know if someone can do something well is to give the person a chance. When the thing in question affects other people, the chance needs to be given under supervised conditions. It is time for a two-stage bar examination process. The first would be a fundamental competency examination that tested many subjects, because, unlike the author, I think that the woven fabric of law is more than a series of isolated topics or subjects, and that a good practitioner knows that a client's problem is one that almost always slices across numerous areas of the law, especially the "forgotten" or "undesired" ones. How many times does a practitioner miss a negotiable instruments issue because he or she didn't take a course in law school and wasn't tested on the matter in the bar exam? Thus, unlike the author, I would test several dozen subjects, not simply a few. The second stage would be a thorough "dumped into a simulated practice situation" experience undertaken after two or three years of preceptored or mentored tutelage. This will require far more investment of time and money than state bars currently invest in the bar admission process. But in the long run, it is better to do the culling this way than to wait until a lawyer needs to be removed after having done damage to clients' lives.

As for the correlation with malpractice, I simply note that too much malpractice is on account of things other than competence. As my mother still reminds me, intelligence isn't everything. Laziness, substance abuse, greed, carelessness, inadequate language skills, and all sorts of other bad traits are responsible for at least as much, if not more, malpractice, than is simple lack of knowledge of black letter law. That is why bar examinations simply testing memorized black letter law and certain test-taking techniques are insufficient. But I do agree with the author that studies are needed. I would like to see an analysis of malpractice cases. What was the malpractice? What caused the malpractice? What courses did the attorney take? How rigorous were the tests faced by the attorney? Were the types of skills required to avoid the malpractice (time management, responsibility, legal knowledge, comprehension of law) available to the attorney while in law school? The results of such a study would be most interesting.

However, if bar examinations were turned into what I want them to be, far fewer applicants would pass, because legal education would be even further afield, except for those students fortunate to be in clinics or other practice world courses. That is why I have proposed that law schools offer sufficient clinics so that all students have the opportunity, and are required, to enroll in a clinic. Well, at least the faculty teaching in clinics like my idea. So do some others. The downside? It costs money. That makes deans frown, though many of them are doing all sorts of creative fundraising to get closer to the goal. Perhaps the practicing bar can step in and fund clinics at law schools so that not only are the disadvantaged provided with legal services they otherwise would not get, but law students can get an education that forces them beyond the bounds of institutions built of walls covered with ivy.

A recent story about a graduate of an unaccredited on-line law school suing the Connecticut Bar Examining Committee because it denies him the opportunity to take the examination caught my attention. I understand the applicable rule, because it or something very much like it requires bar applicants to have a law degree from a law school accredited by the American Bar Association or by the state in a separate approval process.

My question is why? If the point of a well-designed examination is to determine whether a person has the requisite skills, does it matter whether the person acquired those skills by attending an unaccredited institution, an on-line program, or a traditional law school?

Put another way, what do bar examiners fear? That someone who would be a catastrophe as an attorney would pass? If the bar examination is properly designed, applicants lacking the necessary skills won't pass.

The applicant in question, Mel Thompson, took the route he took, not because he did not qualify for admission to an accredited law school, but because he faced financial obstacles. Should his past financial struggles relegate him to a lifetime of being an over-educated paralegal? Considering how much the legal academy pats itself on the back for making opportunities for disadvantaged students, one might expect that it would step up and support the efforts of a person dedicated to becoming an attorney. But the legal academy has a vested interest in the present system of legal education, one that funnels would-be attorneys into institutions that must be accredited and that cannot obtain accreditation unless they play the scholarship game.

Thompson's lawsuit rests on several grounds. He alleges due process and equal protection violations. He also claims that law schools, the accrediting agencies, and bar examiners are "engaged in a conspiracy to restrict and monopolize trade and or commerce through unfair trade practices." He amended his initial complaint to drop the American Bar Association and local law schools as defendants.

The Connecticut Bar Examining Committee is defending the litigation on procedural grounds. It claims that Thompson failed to petition the Committee for a separate evaluation of his legal education. Connecticut has a process that permits a law school not accredited by the American Bar Association to obtain a separate approval. Two schools have done so. The institution which awarded Thompson his degree has not done so, even though other unaccredited schools apparently expressed interest in doing so but did not follow up. Yet, according to Thompson, none of this matters, because the Connecticut Bar Examining Committee web site states that "correspondence and internet law school work will NOT be approved."

Several states do permit individuals to sit for the bar exam even though they have not graduated from accredited law schools. Connecticut permits lawyers so admitted in another state to waive into the Connecticut bar after ten years of practice. Thus, argues Thompson, the Connecticut policy of restricting the bar examination to graduates of accredited schools is "capricious."

I've yet to hear a convincing explanation of why the bar examination isn't open to anyone who clears a character and background investigation. Unlike some professions, where education plus a simple license application authorizes a person to engage in a particular trade or business, the legal profession denies entry to those who cannot pass its entrance examination, no matter where they obtained their legal education. Considering the likelihood that most applicants who earn a law degree from an unaccredited institution will not pass the examination, what's the harm in letting a few more applicants sit for the exam? The examining boards would not lose money on such an approach, because the fees should cover whatever marginal out-of-pocket costs are incurred by the boards.

Another thing to consider is that accreditation is no guarantee that a law student's education is superior. Accrediting committees might identify horrific teachers, but for the most part they worry more about abstract factors such as student-faculty ration, the number of seats in the library, the size of the library collection, and other factors not directly correlated with educational quality. Little, if any, attention is paid to whether law teachers are making the most of technology, are available for student questions in their office or through email, are well organized, design exams that properly measure achievement, understand grading, or have take courses of any sort at education schools. The best test, of course, to determine whether a person has been adequately educated to enter the legal profession is a properly designed bar examination. That being the case, why shut the door? Why not give someone a chance?

This is long, but it's an issue that deserves more than a soundbite.

The MoneyLaw Essay

Thanks to a tip from a posting on Paul Caron's TaxProf Blog, I took a look at Jeff Harrison's Moneylaw essay on Counter-Preferential Choice, Shirking, and Moneylaw. Jeff questions whether law faculty are holding up their end of the bargain, perhaps implicit bargain, with what he calls stakeholders: students, donors, and, in taxpayer-financed schools, the public. Jeff takes the position that law schools have an obligation to educate students "that prepares them for the bar exam and, as much as possible, prepares them to provide competent legal services," and gives them the ability to help generate legal reform. Taxpayers, he points out, are entitled to "expect a law school to produce competent attorneys who will be accessible and play a role in improving the overall welfare of the community."

What brought Jeff's essay to the Tax Prof blog was his suggestion that among law school characteristics failing to help law schools meet their obligations are taxpayer-subsidized LL.M. tax programs. He asks if "there is any chance" that LL.M. (Taxation) graduates will do public service work. He asks why is a law school hesitant to charge graduate tax students a tuition reflecting the full cost of their education?

Reaction

Reaction was swift. Several tax faculty pointed out that graduate tax students often end up in public service positions. The salaries earned while working for Chief Counsel to the IRS, the Department of Justice Tax Division, or a tax court judge do not match, by far, what can be earned in the private sector. Although I agree with the gist of Jeff Harrison's analysis, I part company with him when he assumes that LL.M. (Taxation) graduates give little or nothing back to society. Yet, despite that disagreement with Jeff, I don't think it negates the idea that public subsidy of graduate education ought not be across the board, but tailored to the needs of individual students.

Another criticism of Jeff Harrison's essay was the implicit assumption that the same charge could not be levied against LL.M. programs in other areas of the law. Are lawyers with LL.M. degrees in trial litigation or securities regulation more likely to devote more time to public service efforts? I doubt it. That is why I think taxpayers ought not be subsidizing graduate programs generally as though every student entering such a program deserves or needs tax-subsidized tuition.

Of Course I Have an Opinion

My interest in the discussion was energized by an assertion that the "primary public function of a law school (including tax LL.M. programs) is its research, not its education of students." This opinion was tempered with a disclaimer to the effect that educating students is important and a central goal of law school. Nonetheless, it was pointed out that law school are "expense to run in significant part because professors typically teach only 6 hours a week or less, with half of their time or more set aside for research," thus causing students to "overpay" for their education. Why do students acquiesce to this arrangement? The notion is that students are willing to pay for a degree from a prestigious law school because those degrees have higher value based on the reputation of the law school, in turn allegedly dependent "in large part" on faculty research. The point was then made that law research is a "type of good that has to be subsidized or it will be under-produced by the market." Thus, the argument concludes, law schools receiving tax subsidies are using them more to finance faculty research than to fund law student education.

Something is terribly amiss. Here's an anecdote with a lesson. Years ago, when I was teaching Digital Legal Practice Skills, a course designed to teach law students both the "hows" of technology and its use in law practice, I gave them as an opening problem the design of a spreadsheet to be used for determining if choosing law school rather than a post-college paying career made economic sense. Most of these students had little, if any, business background. It was a classic Jim Maule remedial catch-up course. We no longer teach it because in part I'm teaching other things, no one else wants to teach it, and the need for the course diminished as more entering students understood how to use computers (though not the underlying business and finance principles). Certainly, the students learned about making economic assumptions. Were they forsaking a career opportunity for a degree in history or a degree in computer engineering? What salary opportunities faced them when they graduated law school? What value did they put on a pro bono career?

The interesting outcome was that law school is a poor economic choice (setting aside valuation of satisfaction, prestige, pro bono accomplishments, etc.) unless the student earns a significantly higher salary than the student could earn coming out of college. The degree of difference depended in part on the student's undergraduate major (and in part on the student's other opportunities, such as athletic careers, coaching careers, etc.) There are three years of lost wages to make up, plus the cost of the law school education. One experiment was to jigger the law school tuition amount (using other amounts rather than the then-applicable Villanova tuition). To the extent students are funding legal research by faculty, they are being short-changed. They don't analyze their economic prospects by putting value on law school faculty research. Various studies show that judges and practitioners don't rely as much on law review articles as they do on the commercial advance sheets (perhaps with tax as being a significant exception, ironically).

Compare medical school research. Medical school faculty generate income, both from patient services (some of which are publicly funded) and from outside grants (some of which are publicly funded). Law faculty rarely generate income, and when and if they do, rarely does the school see it.

This is why I think something is amiss. The primary public function of a law school *should* be to educate students so that they can serve the public, whether as public service sector attorneys or as private sector attorneys. The same can be said of any school. The notion that legal research must be subsidized tells us much about the value placed by the market place on it. Indeed, in certain areas the market *does* subsidize research (tax being one), though many law faculty shy away from what is legitimate research because it isn't edited by folks with one or two years of legal education. What has happened is that a good that belongs, if it belongs anywhere, in think tanks, has been put onto the backs of unsuspecting law students, because the cost of educating law students is far less, per capita, than the cost of educating medical students, dental students, engineering students, etc.

If higher education is doing the great job it claims to be doing, there ought be no good reason not to subsidize education through loans with repayment tied to a graduate's economic success, with public funds being used to "reward" graduates who do public service. This is done to some extent, though weakly, through certain tax breaks and loan cancellation programs. Such an approach might help narrow the gap between the high private sector salaries and the low public service sector salaries.

The allegation that the public sector is not getting its money's worth when it funds law (or some other) higher education program is far from new. It's been around for decades, though in recent years its advocates are getting louder and speaking more frequently. The internet creates a wider audience and a deeper communications channel. Institutions of higher education, already summoned, for example, by state legislatures to account for how they operate, surely need to re-define their perceived missions and their operating plans if they intend to survive in a form responsive to the needs of the public.

In other words, public (and private) institutions of higher learning had best figure out how to justify public subsidies on the basis of a return of a public good that the public accepts as a desired public good, rather than on the basis of legal research. Though I agree, to some extent, that legal research has value, I don't think the taxpaying public is or will be convinced by its status as the primary public function of a law school. That may be unfortunate, it may reflect a deep divide between the public and the academy, but it's a very real concern that some current university officials are pondering with deep concern.

Reputation Based on Scholarship: What is It Worth?

Perhaps in response to these views, or perhaps in response to an array of opinions, came an observation, noting two essays written by Russell Korobkin of UCLA, who in Harnessing the Positive Power of Rankings: A Response to Posner and Sunstein, 81 Ind. L.J. 35 (2006), and In Praise of Law School Rankings: Solutions to Coordination and Collective Action Problems, 77 Tex. L. Rev. 403 (1998), argues that scholarship is a public good that is produced because schools can enhance their reputation by producing it and because only law schools can produce it. The essay uses this argument to defend the proposition that law schools should be ranked primarily or exclusively by the school's scholarship.

To Korobkin and those who agree with him, I offer the following. There have been more than enough successful lawyers (in terms of income, public interest cases won, beneficial influence on society) who have graduated from law schools lacking high levels of "scholarship reputation" and more than enough disgraceful attorneys (in terms of corruption, disbarment, malpractice, and political scurvy) with degrees from the "scholarship elite" schools to explain why law students (and even some applicants) are beginning to understand that ultimate success as a lawyer has more to do with (a) attending a school where one can learn to think about law in a practice context, (b) having or acquiring good values, and (c) working diligently than it has to do with the reputation or volume of scholarship by a law faculty. Why pay an extra $10,000 a year for a chance to finish in the bottom half of a class at a "scholarship happy" school when there's no guarantee of a successful career, and even a risk that the lack of a practical orientation will make the career far from ideal and possibly even curtailed?

I understand that the reputational thing gives some graduates an "edge" when first entering the marketplace, but the lack of adequate preparation, good values, diligent work habits, and adeptness at dealing with clients in a practical manner soon is unmasked. Likewise, the student from the school whose faculty writings are held in disdain as "too practical" by law school faculties living in abstract worlds may struggle to find the first job but can soon excel once they find a position. It's not all that different from the disappointing play of first-round picks and the successes from the sleepers taken in the latter rounds, or, better yet, the fall-on-their-face performances from graduates of acknowledged football or other factories and the out-of-nowhere accomplishments of people coming out of "never heard of it" schools.

That's not to say scholarship is irrelevant. Worthwhile scholarship, that is, publications that add quality to the practice of law such that judges and lawyers seek it out, generally correlates with the production of graduates who can provide quality to the public sector. The problem is that there is too much abstract stuff that simply has no value outside of the small, closed circle of scholars, or, to quote someone writing a piece that had no connection to reality, "I'm not writing for judges or practitioners. I'm writing for other scholars." I doubt that much value, if any, is being added to the education for which the students are paying in those sorts of circumstances. Truly excellent scholarship should dovetail with truly exceptional, practice-relevant teaching. There's no reason that good teaching should preclude good scholarship. Measuring the value of scholarship by the number of times other scholars cite it is like measuring an athletic team's success by how many times its fans tell each other it's really a good team that got raked by bad calls from the officials. Measuring the value of scholarship by the number of times practitioners find something in it useful to their attempts to assist clients in the public or private sector find justice is far more meaningful.

The sort of scholarship produced by law faculty surely can be produced elsewhere. Imagine a think tank with 10 or 15 scholar types, freed from the distraction of teaching (as some have called it). Why do these places not exist? The market doesn't see a need for it. The fact that scholars with more interest in (and in some instances, having more talent for) writing than teaching, aided by the silliness of rankings that let law school faculties tell each other how wonderful they are, are increasingly taking over law faculties does not mean it is right, and, more importantly, does not mean that the quality of legal education is therefore enhanced. Most importantly, it does not mean that the quality of service and justice rendered to lawyers' clients is getting better.

As more and more law firms find it economically unfeasible to pay high salaries to trainees who know little and understand less (and of which practitioners and their clients are complaining every more vociferously), and as the shock impact of the chasm between practice and academia encountered by graduates increases with its concomitant disillusion, practicing lawyers will move to disconnect bar admission from the monopoly held by accredited law schools. Already, employers are beginning to look at transcripts as they attempt to figure out why some newly hired associates struggle while others do well. So far, all that exists is a small set of anecdotes, but slowly the data will increase to a point that correlations can be identified. It is going to be a battle royal, but it's on the way. Practitioners with specific practice-focused needs will look more closely at transcripts, and favor students with useful education over students with degrees from elite institutions, for they have learned that high LSAT scores alone mean nothing when the client needs immediate assistance. Even the presumption that the brightest and most talented graduates are those coming out of the schools with the higher position in the rankings is eroding, and eroding quickly.

Perhaps if the "what faculties think of each other" component was removed from the rankings, and if components were added that measured malpractice and disbarment among a law school's graduates, that added number of graduates fired, asked to leave, or pressured to depart from firms, and that reflected job performance rankings of graduates, we'd see an entirely different array. But, that won't happen because too many of the influential ranking designers have vested connections. Talking about failure isn't very popular.

But perhaps I am wrong. Perhaps we should measure the quality of medical schools by how many times other medical faculty cite the medical faculty's scholarship, and ignore the infection rate and malpractice experience of that faculty's students. Perhaps we should measure the quality of engineering schools by how many times its faculty's writings are cited, and ignore how many leaking Big Dig tunnels are designed by its graduates. Surely the value of a public good measured by dead patients and crushed vehicles in tunnels is less important that how many times people congratulate each other on a job supposedly well done. Misdirected intelligence isn't a public good.

Maybe There Is Undervalued "Good" Research?

These thoughts brought a response from another national tax colleague. It was noted that my point that the market does not value much of what passes as legal research doesn't predispose the outcome, because it is from that very point that advocates of taxpayer subsidization of law faculty scholarship begin their arguments. Just as important, legal research of value to practitioners does not require taxpayer subsidy because practitioners who benefit from it will find ways to pay for it. It's the valuable research for which there is no market that subsidization must finance. An example provided to me is the discovery of "a good way to tax income from offshore tax havens," an outcome that would be "an enormous contribution to a just society."

My question is why that sort of research is not being undertaken by the government agencies that are subsidized by taxpayers to enforce the tax laws. Why should tuition-paying law students bear the cost of law faculty research into ways that the IRS or any other federal agency in any other area of the law can do the jobs their employees are being paid to do? Perhaps it's because those agencies are not paying sufficient salaries to attract the bright minds, many of which are busy trying to find ways to hide even more income in offshore hideaways?

Market Disclosure: What Would It Do?

The bottom line is that I do not think faculty research needs to be subsidized. I do not think that education needs to be subsidized, except to the extent the body politic deems it to be a necessity that the market for some reason cannot address. Thus, I favor public funding of education for all children under 18, regardless of their families' economic position and despite the fact that absent a public subsidy many of those children would otherwise be driven by the market away from school and into some other enterprise.

As for higher education, if the market speaks and creates a need, then students will drift to those programs that promise a reward greater than the investment. The market can up the reward (increase salaries) if the market needs to increase the supply of students educated in a program. There is a place for public co-investment to assist those students unable to make the investment. The public subsidy and higher education ought to show confidence in its product by requiring a small (3%?) stake in the graduate's future earnings. If the market wants to subsidize outright grants, it has ways of doing so.

The same can be said for research. The market will fund the research that it needs, either internally (e.g., corporate research), or externally (e.g., university research). The public sector should subsidize such research only if the body politic deems the need to be more than the market determines (e.g., perhaps orphan drugs). What happens to "legal scholarship"? It depends. Some of it has value, and there should be a market for it. In fact, there is a market for some legal scholarship. It's limited and tends to be concentrated in areas of technical specialization (e.g., tax, bankruptcy, environmental). The market does not appear to value other legal research, perhaps because the market perceives it as opinion, politics, and abstract theory. My point is that those producing legal scholarship for which there is no demand other than the producer and the producer's circle ought not leverage their way into having law students pay for it, when law students are ostensibly paying for a legal education.

Perhaps the answer is "Truth in Tuition" legislation? Schools should disclose the portion of tuition that pays for research and scholarship that is not otherwise funded. The computation probably would reflect the number of faculty positions that are filled so that faculty can engage in unmarketable research and scholarship. I wonder what that sort of disclosure would to rankings, after students adjusted their admission decisions?

Thanks to Paul Caron's TaxProf Blog posting, I was directed to a series of articles addressing that seemingly critical question, "Is Legal Scholarship Dead?" Paul nicely quotes from each of the articles, and does so in a way that leads up to the suggestion on which I cannot refrain from commenting.

First comes this quotation from Pierre Schlag, Spam Jurisprudence, Air Law, and the Rank Anxiety of Nothing Happening (A Report on the State of the Art), 97 Geo. L.J. 803 (2009):

American legal scholarship today is dead—totally dead, deader than at any time in the past thirty years. It is more dead, vastly and exponentially more dead, than critical legal studies was ever dead during its most dead period. ...

Now it’s true that we’re producing at a vastly faster rate than ever before. More papers. More conferences. More panels. More symposia. More blogs. And faster and faster too. More and faster. Over seven thousand American legal academics—and all of them cranking out those talks and papers as fast as possible. The speed of legal scholarship is just off the charts right now.

And yet, nothing’s happening.

How could this possibly be? The short answer is that, all around us, there is more, vastly more, of nothing happening than ever before.

To this responded Daniel R. Ortiz in Get a Life?, 97 Geo. L.J. 837 (2009):

What a depressing prospect! Many years short of retirement, I’m condemned, Schlag says, to generate necessarily (but, I hope, excellently) mediocre “legally cognizable material” at an ever-increasing pace. Like a hamster spinning on a wheel, my only hope is that my audience—and that’s probably only my dean—will applaud my display of energy as I move ever more quickly nowhere.

And to that lament came Richard Posner's proposed remedy, in The State of Legal Scholarship Today (A Comment on Schlag), 97 Geo. L.J. 845 (2009):

Might it not be a good idea for law schools, just as they have separate clinical departments, with clinical faculty whose credentials, job descriptions, and career tracks differ substantially from those of the “regular” faculty, to have a department of legal analysis? The members would be legal doctrinalists, and their salaries would probably exceed those of the other professors in the law school (because lucrative private practice would be a close substitute for what they would be doing in law school, which is not the case for more “academic” law professors), but they would have somewhat higher teaching loads and the school would have different and lower expectations with regard to their scholarly publication. The practice of law has become a team effort—so has medicine— so why not legal education? Already regular law professors and clinical law professors work side by side in general amity. Why not have a third group of specialists, the legal analysts, working alongside them?

Posner's suggestion deserves attention, not only because it presupposes some conditions that are questionable but also because it raises serious questions that need to be addressed. His suggestion deserves attention because, as Mike Livingston points out in his comment to Paul Caron's posting, law schools seem to be heading in that direction, but haphazardly and not deliberatively, creating an arrangement different in critical respects from the one envisioned by Posner.

The first concern is Posner's assertion that "law schools … have separate clinical departments, with clinical faculty whose credentials, job descriptions, and career tracks differ substantially from those of the 'regular' faculty," which may be true at some institutions but certainly isn't the case at all institutions. That fact proves the axiom that it need not be the case at any institution. Faculty at my law school are treated in the same way regardless of whether they are teaching a clinic or not. The hiring process may focus a bit more on certain credentials, namely, practice experience in a clinic's substantive area, but clinic faculty are not relegated to some "second class" membership in the faculty. They vote, they are subject to the same tenure review standards, they are not on a different pay scale, etc. There are faculty who teach both a clinic and a "regular" course, which would compound the many problems that would arise from separating clinicians from non-clinicians. Posner's point, though, survives despite the seeming universality of his assertion. His point is that separating law faculty into two (or more) groups would solve a problem.

My second concern is the idea that creating another "class" of law faculty is, in some way, a solution to the problem that threatens to transform law schools, and to do so in ways beyond the schools' control if their administration and faculty don't start focusing on the realities of the current recession and its long-term impact on legal education, as I discussed in How A Transformative Recession Affects Law Practice and Legal Education. It's not just the creation of a separate class of faculty that is disturbing. It's the proposed disparity in treatment, and, worse, the economic justification for the proposed dichotomy.

Posner suggests a "department of legal analysis" that would hire or take over "legal doctrinalists." Presumably, these would be the faculty who teach legal doctrine to law students. Law students, however, need more than legal doctrine. They need the ability to interview clients and dig out relevant facts. They need to learn how to negotiate and bargain. They need to learn compliance and planning techniques. They need to learn how to write, how to teach themselves, how to organize their thoughts, and how to express their reasoning and conclusions. They need to learn how to react to ever-changing legal landscapes. Posner describes what these faculty would be doing as something for which "lucrative private practice would be a close substitute." Yet not all great practitioners are in lucrative practices, because some great practitioners toil in public service organizations, in prosecutors' offices, or in government agencies, serving well their constitutencies and clients and yet not becoming the second coming of Midas. Ideally structured, most law faculty would be teaching clinics and other courses, making the divide between clinician and non-clinician a thing of the past. But that issue distracts from the chief problem with Posner's idea.

Posner suggests that the legal doctrinalists would earn higher salaries than the "'academic' law professors" and would have higher teaching loads than would the "academic law professors." This could mean two things. It could mean that legal doctrinalists would teach, for example, 16 credits during the year, and earn, let's say, $140,000, whereas the academic law professor would teach 8 credits during the year, and earn $70,000. Presumably, that would give the academic faculty more "free time" to devote to "legal scholarship." But it also could mean that that legal doctrinalists would teach, for example, 16 credits during the year, and earn, let's say, $140,000, whereas the academic law professor would teach 8 credits during the year, and earn $125,000. The former interpretation means that academic faculty would be compensated economically for their scholarship only if they found someone willing to pay for it, a proposition extremely unlikely to materialize. The latter interpretation means that law student subsidization of legal scholarship would continue. If that is what Posner envisions, I disagree with his proposal.

To ask the critical question is to ask why law students should subsidize legal scholarship. The replies from the defenders of this practice are interesting. They argue that the legal scholarship done by faculty at Law School A enhance the reputation of that school and thus enhance the employment prospects of its graduates. Yet graduates of law schools that have generated significant increases in "scholarly output" by their faculties haven't gained in the marketplace because those increases in scholarly output haven't diminished the employment prospects of Law School A's graduates. Advocates of student subsidization of legal scholarship also argue that the scholarship contributes to the development of the law, in the legislative arena, through administrative pronouncements, and in judicial decision making. Yet that is far more the exception than the rule. Members of Congress rarely, if ever, read the academic journals. Administrative agencies rely on those practicing in front of them or submitting comments, and rarely does a law review article turn up as an agency submission. Judges turn to the law reviews with ever-decreasing frequency. Practitioners subscribe to services that keep them current in the law, which means that their subscriptions to academic journals has withered away to de minimis numbers. It may be sad from the wider perspective of legal philosophy, but clients pay for what solves and prevents their problems today, and aren't all that interested in how things would turn out for them if Professor X were the czar of the legal world.

How did this come to pass? Years ago, the Supreme Court, in Griswold v. Connecticut, 381 U.S. 479 (1965), cited a law review article written by a law school professor and dean, Erwin N. Griswold, The Right to be Let Alone, 55 Nw. U. L. Rev. (1960). No, I don't think the two Griswolds were related, at least not in terms of considering themselves members of the same family. The appeal of being cited by the Supreme Court resonated with the egos of many a law school faculty member and many more wanting to be law school faculty. And so the race was on to pen the definitive analysis that would lift its author, and the author's school, into prominence when it was cited by the Supreme Court. The irony is that Erwin N. Griswold tackled a practical problem and dealt with it in practical ways that made it useful to the court. So much of today's "dead" legal scholarship plays upon a theoretical landscape offering impractical ideas that it's no wonder the judiciary finds less and less value in the pages of the academic journals. In contrast, practical writing that guides lawyers as they seek to assist their clients also gives judges a good road map to working through a case. When I do write what is considered "true legal scholarship," and I do that from time to time, I focus on practical problems and address a question that has come up in practice and that is near or already in litigation. My practical writing, which is what principally author, ends up being cited with some regularity, particularly in judicial briefs. I doubt the Supreme Court ever will cite me, and yet that in no way diminishes my conclusion that I've been helpful with my writing. My point is that one can both teach and write, in ways that are harmonious, without needing to wander into the places legal scholarship has taken itself during the past twenty or thirty years, apparently, according to some, to places where it will die or already has died.

And that brings us to yet another argument made by those who support the idea that law faculty should be cranking out scholarly article after scholarly article. They claim that these articles will contribute to the betterment of society, by influencing the development of law in a beneficial direction. Yet, as I've pointed out, they're more likely to achieve this result if they focus on practical problems in practical ways rather than trying to justify positions on abstract conceptualizations. Not long ago, a professor from another school came here to present a paper. The issue was important, the analysis was interesting, but for me the paper ended too soon. I asked the author if the goal was to produce something to guide legislatures in framing a statutory solution, to help judges decide the seemingly inevitable case, or to provide practitioners with arguments and planning approaches to use in litigation and planning work. The answer floored me. "I'm not writing for them. I'm writing for other scholars." I bit my tongue. I wanted to ask, "On whose dime?" Why should law students undertake debt in order to fund this sort of production? The answer, of course, is that they are easy targets, riding on a bubble of education debt that made it a no-brainer to increase law school tuition every year to fund more and more faculty scholarship as average teaching loads declined, made possible by expanding the size of law school faculties.

Mike Livingston, in his his comment to Paul Caron's posting, notes that law schools already are "substituting non-tenure track (and primarily nonscholarly) faculty for the more traditional variety" and he characterizes that as a ruse. Indeed it is. These non-tenure track faculty, cost law schools far less than do "regular" faculty and yet their increasing presence doesn't yield tuition discounts or rebates for law students. Why? Because more and more regular faculty demand reduced teaching loads, in order to generate legal scholarship, law schools end up needing to hire non-tenure track faculty, and even adjuncts, to teach courses, including core courses. Here's the catch. These non-tenure track faculty and adjuncts earn less, not more, than the "academic law professor." Law schools have it backwards. They're slip-sliding into an inversion of Posner's suggestion. They will end up, if the trend continues, as institutions paying high salaries to academicians writing legal scholarship and lower salaries to faculty doing the teaching. And law students will continue to borrow money to pay for this experience, why?

What law schools, and their parent universities, need to do is to become honest. The law school is a school. Its tuition should fund teaching, and by teaching I mean not only doctrinal pedagogy but also clinical and other experiential classes, planning courses, practical writing exercises, and all of the other skills that lawyers need. The university, if it so chooses, can establish institutes, or think tanks, that hire people who want to ponder and engage in discourse on topics of interest, to themselves, to the university, to the institute, to whomever, as the university chooses to support. Funding? Consult the think tanks and learn how they obtain money. Think tanks aren't charging tuition. A person who wants to teach and write could be given the opportunity to take a part-time appointment in the law school and a part-time appointment in the think tank, with salary set accordingly. A person who wants to write, and there are law faculty who would invest all their time writing if they could and who view teaching as a necessary distraction, could seek an appointment in the institute. A person who wants to teach, and who doesn't want to engage in the academic scholarship game, could seek an appointment in the law school. None of this would prevent the law school faculty member from writing practical material. None of this would prevent the law school and the institute from collaborating on programs of interest to law students and the practice world, though I predict there would be much experimentation before these organizations figured out how to do it in a way that works.

If law schools don't make these adjustments, they will continue on the slip-slide until the day the faculty wakes up, realizes students are heading for those much less expensive educational organizations established by the practice world, a possibility I suggest in How A Transformative Recession Affects Law Practice and Legal Education, and notices that the revenue required for their incomes has shrunk considerably. The law school will have become the institute, after dismissing most of the faculty, its building will be taken over by the university, to be rented to the new law teaching organization, in some sort of cooperative venture with the practicing bar and perhaps the state judicial system. The outcome will be far less pleasant than the one that can be obtained by a careful and deliberative process of reforming and re-forming legal education. The post-2010-recession economy will not be hospitable to the current arrangement. It truly is a simple choice. What will happen to it?

The other day I received a press release from TVP Communications, bringing to my attention a report titled “Money Matters on Campus.” According to the press release, the report concluded that “Colleges and universities . . . have an obligation to improve financial literacy.” Though I could not find this language in the report, I did find this proposition: “This directly addresses the previously mentioned idea that the responsibility of addressing college student financial literacy cannot just fall in the lap of a financial aid department—it is the responsibility of the entire institution, which includes student affairs, counseling and psychological services, and academic affairs.”

There is no doubt that the financial literacy of most Americans is deficient, if not totally lacking. Almost three years ago, in Tax Education is Not Just For Tax Professionals, I wrote:

My concern about education gaps with respect to taxes, finance, and civics is not a new one. A year and a half ago, in Does It Matter Who or What is to Blame?, I wrote:

And more than three years ago, in Economically Depressing?, I referred to "my expressed desire that K-12 education be revamped so that high school graduates enter society with the survival tools needed for life in the 21st century." According to the 2005 report of the National Council on Economic Education, the latest I could find, only seven states require personal financial education as a high school graduation requirement, one requires high schools to offer a course in the subject though it is not a required course, and one state requires that it be taught in middle school. There are 50 states in the union, plus the District of Columbia and some overseas possessions. Surely personal finance is no less important than other subjects being taught in middle school and high school.

Whatever it is that colleges and universities can do to alleviate the shortcomings of K-12 education with respect to financial literacy, it ought not be the solution. The more time and resources that undergraduate education pumps into remedial education to deal with the shortcomings of the K-12 education, the more time and resources graduate programs, including professional schools, must pump into remedial education to deal with the undergraduate education shortcomings generated by the diversion of resources from teaching what ought to be taught at the undergraduate level to teaching what ought to have been taught at the K-12 level. Of course, K-12 educators will point out that they are dealing with the remedial education required to overcome the shortcomings in parental education of children.

The role of K-12 education is two-fold. It is to prepare students to live life, and to prepare students who wish to continue their education to do so. To prepare students to live life, the K-12 system needs to teach the things that ought to be known or understood by all citizens regardless of chosen profession. Financial literacy is one subject that comes to mind, along with civics, first aid, reading, writing, and arithmetic. Undergraduate education should focus on the subjects that are necessary or helpful to acquiring a skill in a particular area, whether it is chemical engineering, statistics, biology, or anthropology. Graduate and professional education should focus on the subjects that are necessary or helpful to pursuing a career in the specific profession or area of study. The fact that law schools have hired individuals to teach basic writing and grammar skills to law students that ought to have been learned long before high school graduation not only is symptomatic of the deterioration of the American education system but also one of the answers, though a small one, to why the costs of legal education have increased.

But I suppose all of this is what happens when education is underfunded and education dollars are misallocated. School tax reform requires more than tax reform.

A reader directed my attention to a New York Times article analyzing the economics of attending law school, and to a response to the story. As I pointed out to this reader, this is a topic that has been getting a good bit of press in practice-oriented publications (e.g., ABA Journal), law -related blogs -- including those focused on law students, such as abovethelaw.com -- and in discussions among law school deans, law faculty, ABA committees, and others. Perhaps the significance of the New York Times article is that the discussion is going to expand into mainstream media and grab much wider public attention.

The author makes several assertions which are not quite accurate, but these misunderstandings don’t detract from the basic points, which is that students need to take into account employment prospects, the risk of defaulting on loans, and other economic factors in addition to whatever other information they consider, and that they need help from law schools in doing so by having full disclosure of the relevant, and accurate, employment, salary, and other information. For example, the author claims, “Those huge lecture-hall classes — remember ‘The Paper Chase’? — keep teaching costs down. There are no labs or expensive equipment to maintain.” This may be true at some law schools, but law schools that maintain clinics providing services to the needy while giving law students an opportunity to experience law practice in an environment other than a classroom not only are burdened with what amounts to the cost of operating a public-interest law firm but also are constrained in terms of the number of students who can be permitted to enroll. Clinics are important but they aren’t money makers. The huge lecture-hall classes are disappearing, as more and more law schools limit class size to improve students’ educational opportunities. This change is being reflected in law school construction, as, for example, Villanova’s new law school building has only one classroom that can accommodate more than 100 students, whereas the old building had four. The author also confuses the issue when he highlights a student with $250,000 of student loans in a manner that suggests undergraduate education had nothing to do with the size of the debt.

So though there are a few things in the article with which I disagree, the author is calling attention to concerns not unlike those I have made in the past. For example, in Law Schools, Teaching, Legal Scholarship, and the Economy, where I stated, “What law schools, and their parent universities, need to do is to become honest.” In How A Transformative Recession Affects Law Practice and Legal Education, I predicted that “When prospective law school students begin to realize that the chances of getting a job upon graduation have fallen to the levels faced by college graduates with degrees in those majors that have persistently not been rewarded by the economy, even some of the more idealistic of them will view a J.D. degree as an over-priced ticket for admission to what at best is an employment lottery. When they 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.” I also suggested that there will be “some combination of a reduction in the number of law schools and a transformation of what transpires at those that survive” and that “[e}nterprising practitioners, perhaps law firms joining together in collaborative and creative efforts, will form schools focused on preparing people to practice law,” and that [p]roperly operated, they need not charge the tuition rates currently being charged.

The focus of the criticism has been an emphasis on the need of law schools to disclose the realities of job opportunities. It has been proposed that law school applicants should be told that very few law school graduates earn those highly publicized $150,000 salaries when they graduate. It has also been proposed that applicants should be told, and in too many instances are not being told, that significant numbers of law school graduates are not finding law-related jobs when they graduate. Eventually someone will propose that law schools disclose why, after three years of law study, law school graduates are not in a position to practice law, are not near the stage of progress that their peers coming out of medical school have attained, and that some law firms refuse to hire new J.D. graduates for this reason.

Even though I agree that law schools should disclose information such as their graduates’ employment record, and that the information should be specific and free of manipulations such as law schools hiring recent graduates for make-work positions so that the employment numbers can be inflated, I also think there are other disclosures that need to be made by other segments of the legal profession. Why not require legal practitioners to offer full disclosure about the practice of law? Why not require law school applicants to read explanations of how the exciting scenes they see on television dramas and in the movies – cited by more than a few law students over the years as the inspiration for their decision to attend law school – are, like $150,000 entry-level salaries, a fairly rare situation? Why not require lawyers to disclose to law school applicants that there is a good chance they will be confined to small offices, for as many as 16 hours a day, reading through box after box or DVD after DVD of documents and other evidence? Why not require law firms and legal departments to disclose that a specific percentage of their associates or legal employees have concluded their jobs are tedious, stressful, and unfulfilling? Ought not law firms disclose how many newly-hired associates don’t “make partner” and how many choose to leave or are asked to leave after one or two years with the firm? Might not this sort of information cause potential law students to think again about their career decisions? Perhaps law firms ought to be required to explain why some law graduates are offered salaries that are four or five times those offered to other graduates even though all those graduates share a common characteristic, namely, little or no experience. Perhaps someone should explain why there are so many people in need of legal assistance and yet so many lawyers unable to find jobs? Perhaps someone should explain why the connection between those needing legal assistance and the lawyers who could provide it hasn’t been made. Considering that the ratio of lawyers to population is 1:300, and the ratio of lawyers not employed by government, corporations, or tax-exempt organizations, etc. to the population is more like 1:400 or 1:500, ought not each lawyer have 400 or 500 individual clients? Has the legal marketplace failed in this respect? Who is responsible for making these disclosures? It makes sense to require law schools to disclose information about their activities, but the legal profession in its entirety has no less an obligation to be transparent about itself.

The discussion will continue. It will be interesting. It will be contentious. From time to time, it will get sidetracked into other legal education and law practice issues. Whether it will trigger meaningful changes remains to be seen.