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Thursday, January 7, 2016

A Moral Imperative - a Problem with Promise

We have a problem - legal education costs to much. Like most problems thought it comes with a promise, whoever is first to reimagine legal education successfully while making it financially viable will own the future - and the future is now.

Depending upon the statistics you choose to quote, a law degree costs somewhere between roughly 84,000 dollars for a state school and 122,000 for a private school. See http://www.admissionsdean.com/paying_for_law_school/law-school-cost-calculator and http://www.forbes.com/sites/robertfarrington/2014/12/18/law-school-and-student-loan-debt-be-careful/. This figure, of course, does not include any debt incurred for undergraduate degrees or other advanced degrees. This fact alone, in conjunction with the multiple stressors experienced by the big firm market, has resulted in a new general belief - for many, law school is not worth the price of admission. Think about that for a moment, the world has fundamentally changed its perception of the value of a law degree over the last 4 years. This slide occurred quickly, and shows no signs of slowing down. Law schools are now experiencing market stressors for which the vast majority of law professors have no frame of reference. It is difficult to find a time in modern legal education, at least since the advent of the Langdelian method of instruction, to use as a guideline when dealing with what now confronts us all. 

Law professors, by their very nature, tend to be both risk adverse and insular - they don’t like change. They particularly do not like change when they have been the driving force in the known history of their institution. You cannot blame them for their reticence to consider the idea of transforming the legal education experience. Unfortunately any school that finds itself ranked below the top 50 in U.S. News and World Report is now spending a great deal of time working to “define” themselves so that they may maintain market share. Now market share is not an idea that law schools are comfortable with, but in the ever shrinking world of fewer students, lower budgets, and increased financial stressors on parent universities it is a dirty little reality that cannot be ignored.

We law professors have a moral duty to our students, and one that we cannot pay short shrift to any longer. We must think in a practical and entrepreneurial fashion about the future structure of a legal education experience and we must move quickly to accomplish this change - or risk the loss of our institutions as we know them. I want to suggest today that we might be able, as an academy, to find some common values that should inform the entrepreneurial decisions we must make. Think of them as the best of what should be brought forward combined with the promise of the future. If we begin with a focus on what we value, and then structure our future programs around those values we have a chance to remain relevant, to assist in the rebirth of a valid legal educational experience. But we must do so soon.

So where should those values come from? From both the academic and practical world. They must be values that exist in both places or they are not worth spending our limited resources on. So what would be on your list? Mine would include the following, and as many of you might expect knowing me, it has only three primary components at the meta level :

1. Professional Identity and Personal Ethics
2. Understanding the law
3. Applying the law 

These three considerations should permeate the curriculum, existing in every course, extracurricular activity or faculty service opportunity. If we were to use these three guiding concerns as an agreed upon starting point for reworking the law school experience we could protect the best parts of our scholarly heritage, reenergize our usefulness to the practicing bar, and become more connected to the legal world outside of the walls of our personal ivory towers. It would make for a very different educational experience, one with the potential to be truly immersive. It will also require a different type of law professor, a different administrative structure, and the support, real support, of both the ABA and the AALS if it were to stand a chance of success. 

The entire structure of law school should be reorganized around these three guiding principles. Doing this would transform the educational experience for students, and allow law professors to think anew, to learn again, to become students of the educational process, as opposed to overseers of a antiquated approach. The time is now to change, or run the risk of becoming irrelevant. Next time I will put forth some specific ideas about how a law school might structure the learning experience around these core values.

All the best,



  1. There's a charming, uplifting, quixotic French film doing the rounds, The Belier Family. Do see it because you'll be so glad you did. A key character is an obsessed music teacher, passionate about his calling, and - like so many lawyers - so narrowly focussed that he is blind to some fundamental issues that concern his clients.

    The first step as a lawyer in practice, helping others to resolve or minimise problems, is to recognise that there is always blindness in approaching legal problems because we are reacting to someone else's story, someone else's world view. The second step is to have the listening and questioning skills that may shed light upon the hidden. Now where is that taught in today's legal curriculum?

    I recall a NITA Key note speaker from the late 80's or early 90's ( came out of New York) who reminded his audience that 'you should keep your eye upon the donut and not upon the hole' - his advice means so much more to me now than then.

    Legal education by whatever name must take some of the blame for the speed with which so many young lawyers 'silo' aspects of legal problems and ignore the 'whole'. That's a legal education system of which we are a part, albeit a tiny one. Consider: many law students have no intention of practising law - their law degree is a means to another career end. Of those who do intend to be practitioners the majority, by a big margin, intend to do transactional law - pushing paper hither and thither. That leaves the residue who aspire to be advocates, arbitrators, mediators.

    It's this last group who should be our focus: creating now the leading future litigation specialists. There's enough of them to develop a law program that is marketed and priced specifically for their wants. But, given the financial realities outlined by Charlie in this post, who'd take the risk? So, is there another way? I think so. Cross-institutional enrolments for some 'litigation' courses would allow members of the cross institutional consortium to 'share' students across subjects: eg Institution A offers a mixed theory and practice mediation course, B offers a mixed theory and practice in trial advocacy, C offers a mixed theory and practice in Appellate practice and advocacy. All of A, B and C use the same 'problem solving' approach to their evidence teaching.

    Sometimes there are advantages in being small - there may be less establishment inertia in the way.

    I rather like Charlie's three point approach, but to make it happen needs action to show that the vision is real, not fantastical.

  2. A good article. You know it reminded me D. Kahneman's article on his experience concerning natural feeling of justice and injustice. I paraphrased it in order to test a tool from this article "on paraphrase helper resources".

    One of the important conclusion Kahneman received was - people tend to perceive their last state as a neutral, basic one. Those who are changing it, no matter what the reason is, can easily face a strong opposition from the inside of the institution, just because people are afraid of losses more than they want to gain profits.

  3. You are right Markus, it has something similar to Kahneman's work.
    And you would be surprised, but I done the same!! But I used this paraphrasing service instead, wow! That's made my day! :)