Paul L. Caron

Tuesday, April 24, 2012

Campos on Pepperdine's The Lawyer of the Future Symposium

Future-lawyerPaul Campos (Colorado) comments on last Friday's Pepperdine Law Review symposium on The Lawyer of the Future (blogged here and here):

This week I'm planning to write about various widespread but in my view mistaken beliefs regarding the intensifying crisis in American legal education. I'm going to start with this one:

The biggest problem with American legal education is that it fails to produce practice-ready graduates.

This claim has been made by critics of the legal academic establishment for roughly a century now (every 15 years or so some sort of quasi-official report reiterates it). It was a topic of discussion at a law school symposium this weekend on the future of the legal profession, and is apparently a theme of Jim Molitenrno's forthcoming book, A Profession in Crisis, which argues that the fundamental problems with legal education today are in large part products of the fact that more than a century ago "medical schools decided that their mission would be to turn out doctors, while law schools decided that their mission would be to turn out law professors."

Now the claim that law schools remain largely indifferent to the fact that law school teaches law students almost nothing about the practice of law is itself quite true. What isn't the case is that this fact has in itself much to do with the increasingly unacceptable relationship between the cost of a law degree and the economic benefits it confers. Making graduates practice-ready is a fine idea in theory -- why else are law students going to law school anyway? -- but if such reforms do nothing about, or worse yet exacerbate, the crumbling cost-benefit structure of legal education they will do nothing about this fundamental structural problem. ... Any reform that doesn't make legal education less expensive while reducing the number of new attorneys is doing nothing about the real crisis, which is that law school costs far too much relative to the number of jobs available for attorneys.

After all, given the basic structure of American legal education, making that education more clinically intensive would be even more expensive than maintaining the present model, which remains centered on tenure-track law professors teaching classes with 50 and 75 and 120 students in them. (The simplest way to drive down the cost of legal education would be to make the tenure-track faculty teach the same number of classes their predecessors were teaching in the 1970s. It's true this might result in 5000 rather than 10,000 law review articles being published per year, but under the circumstances this might be a price worth paying). ... And doing so would certainly not do anything about the fact that ABA-accredited law schools are producing (at least) two law graduates for every legal job. ... The problem, as these statistics illustrate, is that it appears essentially the same number of real legal jobs that existed 25 years ago are now being pursued by literally twice as many lawyers.

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"Practice-ready" law-school graduates (to the extent law practices have things in common and are thus susceptible to mass law-school training) will be better able to compete for jobs against other law-school graduates. They will be marginally better equipped to start their own practices, though there's only so much of that you can teach in three years, along with actually learning the law.

On the whole, however, this would do little if anything to create more employment for lawyers, which is the crisis facing most recent law-school grads.

Posted by: Shelby | Apr 25, 2012 9:56:05 AM

Just curious but where is F.I.R.E. on all of this?

Posted by: Steve Ducharme | Apr 25, 2012 9:00:07 AM

The problem is, there is a difference between "commodity" legal work and the complicated high-end high stakes legal work. I focus on the latter, and we can't find enough competent people to do the work at the level of competence our clients require.

But there are plenty of ways in which more "commodity" lawyers are desperately needed - just go down to 400 W superior Street in Chicago (the city's Department of Administrative Hearings), zoning, building court, property tax appeals, etc., and tally up how many people with lawyers manage to avoid the city's administrative financial burden vs the poor out-of-their-depth schmucks who had to take a day off work to come down into the city to try to contest their fines or otherwise plead for some mercy/leniency and still get stuck with $200 court costs even if they "win." Then you get to county bureaucracy and state bureaucracy headaches (just try dealing nicely with the Illinois department of revenue, or contest a worker's comp claim, or contesting a higher contribution rate for unemployment taxes due to firing an employee you caught stealing, without a lawyer). This is further writ large for anyone who has had to try to deal with EPA/OSHA/labor compliance/ERISA/EEOC issues.

This kind of "commodity" work would be ideal for a bunch of just-starting-out lawyers with basic competency to delve into, at low/contingency rates. You learn how to try a case on the fly, with inspectors and other random bureaucrats who routinely make stuff up, and with no discovery. It would be a win for small property owners, small businesses, etc.

But law schools aren't exactly training their students to figure out creative ways to (a) act as entrepeneurs to (b) fight the bureaucracy on behalf of the little guy. And most universities use law and med schools as cash cows to fund other parts of the school, so they'll be quite unwilling to let the law schools spend more tuition dollars on a more practitioner-oriented approach that might actually help their students earn an income.

Of course, for those who would be interested in doing "commodity" legal work, they don't really need 3 years of law school; 1 year that covers basic civ pro/evidentiary rules, contracts I, torts I, corporate law, commercial paper, admin law and an apprenticeship with an experienced attorney would do just as well.

And, as more courts start shifting to electronic filing/docketing, you can do a lot more as a solo practitioner from a home office environment or at least a shared office resource to cut down on overhead. Without the heavy loan debt or major overhead of an office/secretary, $50/hour for 2000 per year is still a gross of 100K. Even if you assume you lose half to overhead costs related to computers, legal research, insurance, etc., that still is not bad to just start out with as a salary.

Just my 2c.

Posted by: Anon | Apr 25, 2012 8:04:40 AM

This is due to a combination of increasing productivity per lawyer (due to computers), increasing prosecutorial effectiveness (due to more and more laws that make it easier to prosecute), and demographics.

Posted by: Doc Merlin | Apr 25, 2012 7:28:16 AM

The problem with most practice-ready programs is they basically involve adding a few courses in the third year that mimic private practice (or try to). But if this is the appropriate method why not just shorten law school to two years (one year) and let people do it on their own? Campos is right: you can't short-circuit the discussion of cost and value by tinkering at the edges.

Posted by: michael livingston | Apr 25, 2012 3:19:45 AM