Paul L. Caron

Thursday, October 9, 2014

Will Social Justice Save Law Schools?

Following up on Tuesday's post on Edward Rubin (Vanderbilt), The Future and Legal Education: Are Law Schools Failing and, If So, How?, 39 Law & Soc. Inquiry 499 (2014):  Orin Kerr (George Washington) noted in the comments:

Social JusticeIf I understand Rubin correctly, he believes that two future trends will profoundly reshape U.S. legal education: (1) The future will be technologically different from today, and lawyers will be needed create the new legal arrangements for that different future based on an understanding of new technologies, and (2) Our future society will realize that social justice demands that everyone get free lawyers paid for by the state for their legal problems, which will create a dramatically expanded need for lawyers. As for (1), it's not clear to me why law school training would need to change in any substantial way for that. As for (2), the evidence supporting that prediction seems very thin. Or so it seems to me; I'm curious if others who have read the article have a different reaction.

Here is an extended excerpt of Ed's argument on "The Social Justice Agenda and Legal Education" (citations and footnotes omitted):

The second major social trend that is directly relevant to legal education is the ongoing demand, both moral and political, for social justice. If income inequality is to continue at present or near-present levels, then our society's primary means of responding to this demand is through increased and higher-quality public services. But as society becomes increasingly complex, people need assistance in taking advantage of the services that they are offered and in knowing which additional services to demand. Legal representation becomes necessary in this process and, through its increasing importance, will be ultimately recognized as a service in itself.

At present, our society tolerates a lack of service in the legal area that would be simply unacceptable in education, health care, or subsistence. We have grudgingly accepted the principle that those accused of crimes need representation, even if they cannot afford it. The need here is obvious. But people's rights in other areas of modern, complex society are equally dependent on legal representation. The services that the government provides, such as welfare benefits, housing, health care, and education, were originally treated, in US constitutional law, as privileges, the product of the government's largess. ...  A better formulation is that people of ordinary means receive these benefits in place of property. In 1970, the Supreme Court recognized that people had a legal right to such benefits, thus rendering them enforceable under the Due Process Clause.

Legal representation might not appear to be as necessary for obtaining government benefits as it is for defending oneself from a criminal indictment, but as the services society offers become more numerous, more varied, and more complicated, people are increasingly in need of assistance in order to take advantage of them. At present, the “uptake” of government benefits by those who are entitled to them is often surprisingly low; as time goes on, the problem will almost certainly become more severe. People who do not know the benefits to which they are entitled, or who do not have the skills necessary to obtain them, have been as clearly deprived of their rights as the unrepresented criminal defendant. Of course, as Richard Susskind notes, a person does not need a legal degree to provide assistance of this sort and the growth of alternative providers may be part of the legal profession's ultimate demise. However, lawyers are certainly capable of providing it and may be the best source of such assistance, particularly if they are trained to do so.

The role of legal assistance in fulfilling our society's social welfare agenda goes well beyond assistance in obtaining government benefits, however. First, it enables people to enforce their traditional legal rights to the new products that our knowledge-based economy is producing. These technological marvels, in their present form, are formidably complex and the shift to a knowledge-based economy will only increase their complexity. ... It is inevitable and, in fact, advantageous, but its consequence is that people need as much legal assistance in asserting their commercial law rights as they do in asserting their criminal law rights. This assistance, moreover, will need to be provided at an increasing level of specialization as products, and the relationships among the corporations that contribute to their production, become more complex. Firms that sell products to consumers have an incentive, of course, to maintain quality and avoid dissatisfaction, but our experience with more than a century of mass marketing is that these market mechanisms are far from perfectly effective.

The second sense in which legal assistance is an independent component of the social justice agenda is more abstract, but no less important. If social justice is to be implemented through the provision of services rather than through redistribution of wealth, it is important to achieve at least an approximate equality in the level of service that is provided. Inner-city schools are significantly worse than schools in wealthy suburbs, but at least they teach the same subjects, for the same number of years, and offer the same degree on graduation. Inner-city hospitals are worse than suburban hospitals and private clinics, but we are in the process of concluding, as a matter of social morality, that it is unacceptable to deny basic medical care to people who cannot afford to pay. With respect to legal services, however, at least outside the criminal law, there is no sense of equality at all. People of moderate or modest means simply do not have access to the legal assistance that the wealthy obtain on a regular basis and the upper-middle class obtain in times of perceived need. As legal services become more crucial in specific situations, however, the sense that they should be available to everyone, on at least the approximate basis that is true for education and health care, is likely to grow stronger.

The likelihood that legal services will become increasingly important for our sense of social justice creates both a challenge and an opportunity for law schools. The challenge is that the law school curriculum, in its present form, is designed to train students to provide legal services to corporations, wealthy individuals, and prosperous small-town elites, not to the working classes or the underprivileged. This is hardly surprising, since the curriculum dates back to the late nineteenth century. At that time, public benefits were rare and those that existed were regarded as privileges that were not protected by law. People still obtained most of their goods from local merchants, who they could deal with on a relatively equal basis, either without recourse to law or through a simple action involving comprehensible issues. The idea that government should guarantee people basic services such as health, education, and subsistence had not yet been established and the idea that legal services should be part of this nonexistent obligation was, of course, nonexistent.

To be sure, there are courses in the current curriculum, although mainly in the second and third years, that focus on serving the legal needs of the less advantaged. Clinical courses are particularly notable in this regard, but here again, their isolation from the “academic” curriculum undermines their value. This isolation tends to transform them from a means of teaching basic elements of the legal system, such as welfare, landlord-tenant, and consumer law, into ways to develop important legal skills by practicing them on unimportant people before one graduates and starts representing “real” clients. Clinical teachers rarely communicate this message, of course, but the general structure of the curriculum announces it quite clearly. Some upper-class academic courses are specifically concerned with social justice, of course, but they tend to attract a minority of students in most law schools. Bar exams, of course, exacerbate this tendency through the subjects that they emphasize.

This suggests a further problem with the idea of a two-year law school. In such a truncated program, it seems likely that the clinical- and social-welfare-oriented academic courses would be the ones that students would omit. Here again, it would be preferable to have a four-year school, where students could satisfy themselves (and the bar examiners) that they were receiving a basic legal education and still have time to develop the knowledge and motivation to provide the legal services that will advance our society's social justice agenda. It is not difficult to envision a law school program that would introduce students to statutory law as well as common law during the first year, offer a panoply of courses, combining academic, clinical, and simulation techniques to teach specific topics, including social welfare topics, during the next year or two, and end with an intensive year-long, interactive program that would enable students to develop the specialized knowledge that will be in greater and greater demand as our knowledge economy expands and our social services become more complex and comprehensive.

The ideas of expanding law school to four years and of encouraging more graduating students to practice public interest law—to say nothing of the combination of the two—once again raise the financial issue. As Tamanaha points out, law school tuitions have been rising steeply and students are incurring increasingly onerous debt burdens. Curricular reform that provides better preparation or encourages stronger commitment to public interest jobs will be pointless if students cannot afford to take those jobs because they will not be able to pay off their debts.

In fact, law schools already have the resources to forgive virtually all the loans incurred by students who obtain employment in the public sector. As  Tamanaha notes, the total amount of money law schools awarded for merit-based scholarships in 2010 was $757,691,508 (2012, 97). The main purpose of this massive expenditure was, unsurprisingly, competition—the effort to attract talented students to one's law school, thereby increasing one's median SAT and GPA score and thus one's U.S. News ranking. If law schools abolished their merit-based scholarships and devoted the same annual expenditure to loan forgiveness for graduates who are employed in some sort of public service role, which—given the amount of money involved—could be broadly defined to include any government, government-sponsored, or nonprofit work, they could effectively eliminate these graduates' debt burden. This would probably not affect the quality of the students attending law school to any great extent, since law schools are currently using their merit scholarships to compete for the same students, but it would be a highly efficient use of financial assistance funds, since it is relatively easy to make a once-a-year determination that the student is working in an aid-eligible job and the assistance can be ended before the next year if the student switches to a private position, in or out of law.

Loan forgiveness does not solve the basic problem, however. Law schools may be able to relieve students of the debts that they incur while in attendance, but they cannot provide their graduates with living wages. The debt-free public interest lawyer who is not paid sufficiently, or is not paid at all, will starve almost as quickly as the debt-encumbered one. To advance our social justice agenda, the nation will need to fund legal services for ordinary people through public sources. The paltry funding now available will need to be increased by at least an order of magnitude to provide anything close to comprehensive assistance in the categories specified above: uptake of public benefits, redress for the inevitable mishaps in an economy filled with complex products, and some general sense of social equality in the availability of legal services.

Funding of this sort may seem inconceivable at present, but less than a century ago, elderly people who had earned a salary in their younger days were permitted to become destitute if they had failed to save; now it is inconceivable that Social Security would not be available for them. The last half-century saw a similar transition regarding the provision of medical services. Medicare and Medicaid greatly expanded the availability of these services to ordinary Americans, both working class and disadvantaged. The Patient Protection and Affordable Care Act continues this process. It took twenty years to enact and encountered massive resistance, to be sure, but part of that resistance (“government out of my Medicare”) came from working-class people who did not want to see the public benefits they already accepted as an unchallengeable right extended to people they regarded as undeserving. Resistance is already beginning to crumble. The electorate did not vote for candidates committed to the repeal of the ACA in 2012, but for those committed to its continuation and the Supreme Court, against expectations, upheld the bulk of the statute against a variety of constitutional challenges.

In a few decades, perhaps, we are likely to go through the same process of debate regarding legal services and a few decades after that, it will begin to appear inconceivable that our governmental system would grant ordinary people legal rights but deny them the capacity to enforce those rights. Precisely how public funding for legal services will be managed will depend on the political cross-currents of the time. The most efficient way to do so would seem to be direct support from the income tax levy. It may be politically necessary, however, to use Franklin Roosevelt's strategy of beginning with a social insurance plan that gives working-class people the sense that the benefit is something they have earned, rather than a governmental program. That has the political advantage of dividing the lower four income quintiles against each other and denying the benefit to the least advantaged, who will then be granted that benefit more grudgingly and in reduced amounts. Other arrangements are also possible and perhaps, by this time, we will even have come up with something new, perhaps something invented by an intelligent computer.

Clearly, public funding of this sort will be advantageous to law schools, considered as a group at least. But law schools will need to change in basic ways as a result. If they fail to do so themselves, then a government committed to providing legal services to ordinary citizens will compel them to do so. In other words, the future that awaits US law schools is promising but also challenging. The challenge arises not so much from the rapid pace of change that society is experiencing, and will continue to experience, but from the glacial pace of change that law schools have exhibited thus far. It is difficult to think of any major US institution that has changed so little over the course of the past century. The coming century is unlikely to have either space or tolerance for such institutional lassitude and self-indulgence. ...

It is possible, of course, that social progress will grind to a halt, that people will be unwilling or unable to adopt new approaches, and that our society will dissolve into either chaos or senescence. But if we survive, it will be because we can continue the sort of progress, both economically and socially, that has secured our stability and prosperity thus far. And it will be this process that will shape the law schools of the future.

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The Govt. is not going to establish a new entitlements program for legal services. Just isn’t going to happen. Schools need to do a better job facing reality.

Here is how I see the future unfolding:

Applications continue on a steady decline. 2016-2017 yields under 45,000 apps, 2018-2019 yields under 40,000 apps.

Applicants are increasingly savvy, bargaining ruthlessly, and choosing schools based on price rather than prestige.

Schools have to admit terribly unprepared students to plug budget holes, and have to employ increasingly aggressive marketing tactics to get them. This leads to more bad press.

Schools wait far too long to begin slashing budgets. This is the fatal error. The deficits grow by leaps and bounds each year. Schools can’t meet their obligations and default.

Congress repeals IBR/PAYE, but only prospectively. This happens in the next 7 years.

Schools no longer have the option of lowering tuition because they need money right now. There is no planning for a sustainable future.

Schools shut after about 3 consecutive years of multimillion dollar ($5-15) operational deficits. This applies to between 50-100 schools over the next 10 years.

The top professors from the defunct schools are absorbed into the remaining schools. As a result, hiring of new professors is down to 10-30/year. Academia is no longer a realistic goal for top graduates, who are forced into private practice of government jobs where they will be much more useful to society.

Only about 20,000 law students graduate and pass the bar each year. Most of them that are worthy of jobs (~15k) get jobs.

Because so many law schools shut down, there are no longer thousands of terrible law students that wreak havoc on people’s lives when they become lawyers.

The focus of law school becomes to train attorneys. That doesn’t mean practical skills training; it means doctrinal training that is relevant to practice (i.e. no more space law, international law, drone law, sports law).

There is balance between graduates and jobs. Graduates are of much higher average quality. The world is a better place.

Posted by: JM | Oct 10, 2014 7:14:22 AM

I had a law student who, after graduating from college nearly debt free, worked in a state bureaucracy helping citizens walk through a maze of administrative rules in order to obtain benefits. To rise in that field, he needed a law degree. He enrolled in law school, took on debt, and was unable to go back to that area of law -- but he was as capable at doing it as he was before. Moral: if we do move to Civil Gideon, it can be accomplished without JDs. Most of that law can be done by reasonably bright people with BAs.

Posted by: anon | Oct 10, 2014 6:23:41 AM

Thanks on behalf of those without access to institutional accounts for adding a larger excerpt. Having read more now, I agree with Prof. Kerr, particularly as regards point (2). It's more than a little odd to point to programs under current political attack, particularly as regards to their funding (i.e., public defenders, social security, and the ACA) as evidence that "[i]n a few decades" the government will adequately fund free civil legal services.

Also, while I'm a patient guy, "a few decades" and "a few decades after that" seems like a long time to wait for a solution to a problem affecting thousands of young people a year.

Posted by: Former Editor | Oct 9, 2014 5:40:49 AM

For a partial model we could look to Ontario, Canada, where poor and working class couples in disputes over divorce, child support and custody get private lawyers paid for by government. Less violence, including damage to children, is one benefit among many of this system.

Posted by: David Cay Johnston | Oct 9, 2014 2:38:14 AM