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Tuesday, March 18, 2014

Shane: The True Spirit of Law School Reform

Chronicle of Higher Education op-ed:  The True Spirit of Law-School Reform, by Peter M. Shane (Ohio State):

Although a storm of criticism surrounds contemporary legal education, a key group in developing accreditation standards recently responded with welcome caution. The Standards Review Committee of the ABA Section of Legal Education and Admissions to the Bar voted on February 7 to recommend only three relatively modest changes to ABA standards. The committee took no action on what is likely the most contentious issue the section faces—whether to accredit law schools that do not have a tenure system for faculty. ...

The immediate crisis facing law schools is a drop-off in applications. Applications fell last year to a 30-year low. A weak job market, high tuition, and a tsunami of bad publicity are likely causes. At the same time, many Americans lack affordable access to legal services. Getting rid of tenure, however, would not solve these problems—nor would allowing law schools to create a supposedly more practical curriculum taught by larger numbers of lower-salaried faculty members who are not expected to do research. ...

There are four clear problems, however, linking this bleak forecast for the legal profession with recommendations to abolish tenure or facilitate law schools’ move to lower-cost “practice-ready training.”

First, the argument imagines that excellent teaching could be maintained even when compensation for faculty members goes down. There is no evidence for this. ... Second, even if costs could be forced down, students would find law school more affordable only if lower costs were reflected in lower tuition. ... Third, lowering costs will benefit law schools only if the strategy attracts more students. ... Finally, the goals of cost reduction and better professional preparedness may well be at odds. ... 

Of course, it may turn out that the market cannot sustain 200 accredited law schools boasting programs of teaching and research that introduce students not only to the current practice of law, but also to the history and operation of legal institutions, the social and economic challenges lawyers are expected to confront, the ethics of the profession, and the contested nature of justice. If so, we should have fewer law schools. Legal education should not have more modest ambitions.

Update:  Above the Law, What If Law Schools Were Really Serious About ‘Practice Ready’ Grads?

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Comments

“Getting rid of tenure, however, would not solve these problems—nor would allowing law schools to create a supposedly more practical curriculum taught by larger numbers of lower-salaried faculty members who are not expected to do research.” Really? Why not? First, ridding the system of large numbers of tenured, doctrinal professors who have never practiced law as an occupation (as opposed to a ticket-punching exercise on the trip to academia) would reduce salary costs. Nearly all of the tenured faculty is confined to doctrinal subjects–as it must be, since its incumbents primarily are teachers, not lawyers. Moreover, most of the scholarship being produced by today’s tenured faculty is of dubious value to the profession it purportedly supports, a fact widely recognized by practicing lawyers and the judiciary. A reduced cadre of tenured, doctrinal professors could carry on with a much less voluminous scholarly publication regime, without any loss to the profession. Second, hiring substantial numbers of practicing lawyers--particularly trial and appellate litigators--would certainly improve legal pedagogy. Litigators spend their days reducing complex factual and legal issues to teachable sound bites for judges and juries, whether at the trial or appellate levels. They develop successful methods for conveying such information to audiences ranging from jurors lacking high school diplomas to high court judges. Many can teach rings around a large number of the law faculty which whom I am acquainted.

Posted by: Publius Novus | Mar 18, 2014 7:01:06 AM

From: "The Purposes and Methods of American Legal Education," 2011 Journal of the Legal Profession 1.

As teachers, our approaches to our students’ learning experiences should take into account differences in innate talents, interests, backgrounds and career aims. The learning achieved by our students should not be measured only by a limited testing methodology, but by different career aims and options and other important variables. It has been my experience that many students in courses involving the use of methods and material such as negotiation, strategy, counseling, dispute resolution, trial advocacy and other subject matters relating directly to the quality of law practice are able to match or surpass the performance quality achieved by students who excel in the traditional course formats.

I have often found a heightened perceptiveness and ability to use and recognize nuance and strategy among students who grades do not place them in the top twenty five or so percent of their law school class as measured by the ability to do well on written essay examinations. Even though I am not going to try to elaborate on the point, the distinction may well be of the kind intended by those who have sought to include what they call EQ or emotional intelligence along with IQ or intellectual intelligence. The ability to perceive and communicate nuance, recognize issues with the greatest persuasive weight and deal with the human dimension of law and law practice represents qualities that are at the heart of a great deal of an effective lawyer’s work. This raises the core question of whether the traditional methods and primary subject matters we concentrate on in American legal education adequately educate those aspiring to become lawyers responsible for representing a diverse range of clients across a wide spectrum of forms of law practice or whether we are preparing law students for something that is scantly related to what they will spend their lives doing in the legal profession.

In regard to our teaching there is no empirical proof that any connection exists between the teaching methods used and the substance of what is taught in American law schools and the quality of service, understanding of the law, and the ethical behavior of law schools’ graduates. Our justification of the quality of our teaching and the importance of the subject matters we advance in our classes is based on assumption, tradition and anecdotal examples. We have no real idea of whether the legal curriculum is effective or whether we consistently provide a quality education through the content offered and methods used. Nor is it likely there will be an honest internal critique of the system. Since law faculty are the exclusive judges of their own performance and of the wisdom of the curricular structure and content with which they function, any assessment that does occur is self-interested and idiosyncratic rather than rigorous and objective.

At the heart of such issues is the extent of law schools’ responsibility concerning educating students whose career aims are directed toward becoming lawyers. If law schools are to be evaluated on the basis of how well they fulfill their obligations, fairness demands that those obligations be defined clearly and substantively. It is also only fair to note the limits--not only as to what law schools ought to do within the present structure but limits on what they are capable of doing given resources, student capabilities, timing of the educational input and the ability to buffer the force of the institutions and dynamics of law after students graduate and enter the legal profession.

If we assess the quality of our teaching in reference to the quality of the legal profession based on service to clients and improvement of the institutions of justice I feel comfortable stating that the quality of legal services provided too many clients is sub-standard and the inefficiency and continuing injustices produced by our key institutions remains relatively extreme. This is due to a variety of factors that to some extent includes inadequate education. But a substantial proportion of the lack of quality and professionalism in the legal profession relates to considerations of time and economic pressures spread across the demands of trying to provide service to a multiplicity of clients. It also, however, involves institutional pressures to conform to the assembly line processes and expectations of important parts of the legal system as well as one’s employers. This includes not only the criminal “justice” machinery but many civil disputes and transactions. These problems are exacerbated by laziness, unprofessionalism and incompetence.

Posted by: David | Mar 18, 2014 8:47:41 AM