Monday, December 31, 2012
Kyle P. McEntee, Patrick J. Lynch & Derek Michael Tokaz (all of Law School Transparency), The Crisis in Legal Education: Dabbling in Disaster Planning, 46 U. Mich. J.L. Reform 225 (2012):
The legal education crisis has already struck for many recent law school graduates, signaling potential disaster for law schools already struggling with their own economic challenges. Law schools have high fixed costs caused by competition between schools, the unchecked expansion of federal loan programs, a widely exploited information asymmetry about graduate employment outcomes, and a lack of financial discipline masquerading as innovation. As a result, tuition is up, jobs are down, and skepticism of the value of a J.D. has never been higher. If these trends do not reverse course, droves of students will continue to graduate with debt that greatly reduces their ability to fulfill the law school graduate’s traditional and important role in American society. The point at which the law school crisis becomes a disaster for legal education is debatable, but the importance of preparing for and forestalling this disaster is not.
This article serves two forward-looking purposes that stem from the premise that American legal education requires structural change to reduce the cost of obtaining a legal education. First, we set a framework for thinking about reforms to the method of delivering legal education. Second, we examine three blueprints for structural reform: one that has already been implemented and is ineffective, and two that set the discussion on the right track. These blueprints reject mere tinkering in favor of refocusing the attention of legal education stakeholders on the drastic structural changes needed to provide quality, affordable legal education.
While we provide only a starting point for considering how the two new models could work in principle, they serve as an intellectual blueprint that can pave the way for new and better ideas about legal education. It is clear that cost reform is necessary, and it is likely that substantial reform is coming. The shape of this reform depends on who gets involved, which we hope includes actors beyond those who have set legal education on a path toward disaster.
I’ve always admired Law School Transparency—even, I’d like to think, before it was fashionable. There is a good deal to admire. LST and its principals recognized early in the collapse of the law-job market that law schools were doing a discreditably poor job of making available the information necessary for a rational person to determine whether or where to get a law degree. They believed that potential consumers of legal education would make better choices if they were better informed. They were pointed, patient and persistent in pressing for more and better disclosure. They were an instrumental part of the process that effected that change. And they’ve offered a number of thoughtful and useful perspectives on the information they helped bring to light (I don’t particularly agree with a number of them, but I certainly respect the effort and empirically supported thought that went into them).
So I was intrigued to look into the latest contribution to the law-school reform discussion authored by LST’s co-founders and its research director ... What a disappointment. Commentators with the public stature of Law School Transparency should not “dabble.”
I do not mean to say that three twenty-somethings who have essentially never practiced or taught law have no place explaining how to assemble a curriculum or run a law school so that its graduates will be both prepared to practice and attractive to legal employers in the most difficult legal job market in American history. I do mean to say that, if you don’t know how to do it and you don’t know how to teach it, you really ought to do your homework so that your prescriptions are meticulously grounded in empirical experience and coherent argument. Sadly, you won’t find much of either here....
Q: Then why are you being so harsh with LST? You’ve really been kind of a jerk, you know.
A: Well, I am being harsh. Here’s why: LST has (in my opinion) distinguished itself since it came upon the scene by its mostly measured and thoughtful idiom, and its basic confidence in the power of information to influence rational behavior and level the playing field. The article I just criticized is an abrupt and in my opinion unwelcome departure from a style of public discourse that I genuinely admire, not only because it is predominantly engaged and positive (though it is), but because it is—again, in my opinion—effective. Tossing around the rhetoric of “disaster” and “crisis” without meaningful effort to define the threat, couched in empirically vacuous and occasionally self-contradictory pronouncements, reverts to the toxic style of discourse sadly prevalent in current affairs, and doesn’t advance anything other than perhaps LST’s public profile. There are more wholesome and productive ways to achieve that end. In my opinion, LST should hold itself to the same standards of data-driven rationality and full disclosure to which it rightly holds the institutions it criticizes.
Some friends and colleagues who read my lengthy post on Law School Transparency's recent article on law-school reform gently suggested that I should stop publicly haranguing myself on the bus before people began to worry about my stability (those who read the post will understand the reference). Kyle McEntee of LST also contributed a measured and thoughtful Comment of the kind that I had come to value and respect from him and his organization, for which I thank him.
I remain uncomfortable with both the form and the substance of LST's proposals, but I also recognize the merit of the friendly advice I've received that there are more constructive ways to contribute to this important discussion than the one I chose. So I'll work on it and try again in a few days.
Update #2: Bernie Burk refashioned his post on 7:20 p.m. on New Year's Eve (yes, I have no life) as Law School Transparency Jumps the Rails (Or, Why I’m Still Disappointed with LST’s Latest Contribution to the Discussion on Law-School Reform):
With thanks to the commenters and correspondents who responded to my original post on this subject with an absolutely fascinating range of views, I’m going to take another run at explaining why I’m still disappointed with the recent article by Law School Transparency co-founders and research director Kyle McEntee, Patrick Lynch and Derek Tokaz (to whom I will refer in this post interchangeably with LST, though I’m not sure whether they would agree with that). The paper, forthcoming in the University of Michigan Journal of Law Reform, is rather dramatically entitled “The Crisis in Legal Education: Dabbling in Disaster Planning.” Familiarity with my original post is not presupposed.
As I mentioned in my original post, I’ve always admired Law School Transparency—even, I’d like to think, before it was fashionable. There is a good deal to admire. LST and its principals recognized early in the collapse of the law-job market that law schools were doing a discreditably poor job of making available the information necessary for a rational person to determine whether or where to get a law degree. They believed that potential consumers of legal education would make better choices if they were better informed. They were pointed, patient and persistent in pressing for more and better disclosure. They were an instrumental part of the process that effected that change. And they’ve offered a number of thoughtful perspectives on the information they helped bring to light (I don’t particularly agree with a number of them, but I certainly respect the effort and empirically supported analysis that went into them).
So what’s my problem with “Dabbling in Disaster Planning” (beyond everything the title ought to tell you without asking further)? Here’s a catalogue of my most serious concerns:
- Don’t overdramatize
- Don’t allow hysterical language to mask a failure to define the issue you need to address
- Don’t ignore the implications of your justifications
- Don’t ignore inconvenient facts
- Don’t assume away the problems you perceive; recognize and try to solve them
LST deserves everyone’s gratitude for an earnest and courageous effort to advance the discussion on a miserably complicated and difficult set of problems. The execution leaves something to be desired for the reasons just discussed. But at a minimum, it highlights a number of the challenges that are going to have to be addressed before meaningful and effective reform will be possible. We can only hope that, as each of us comes forward with our own ideas, the mistakes we make are new.
(Hat Tip: Greg McNeal.)