Paul L. Caron

Monday, April 20, 2015

Tamanaha, Estreicher Respond to Morriss' Ten Reasons To Be Cheerful About The Future of Legal Education

Brian Tamanaha (Washington University) and Samuel Estreicher (NYU) respond to Texas A&M Dean Andy Morriss' Ten Reasons To Be Cheerful About The Future Of Legal Education

Brian Tamanaha (Washington University), Reasons to Be Gloomy About Legal Education:

I agree with much in Dean Andrew Morriss’ Liberty Forum Essay. And I endorse his hope that, in the future, legal academia will have greater differentiation. Yet my take on legal education’s prospects is much gloomier. Dean Morriss writes mostly about what should occur going forward, whereas I am watching what is happening right now. What I see gives me little reason for cheer.

The greatest force for reform in legal education is the stunning decline in law-school applicants, falling to lows not seen in decades. The good news, as Morriss says, is that law schools compete for students through heavy discounting, in the form of higher scholarships deeper into the class. A dozen or so law schools have announced rollbacks in tuition. These price reductions should bring debt levels down for many future graduates, as long as pricing competition continues.

The other good news is that the decline in enrollment promises to reduce the oversupply of law graduates that has flooded the market in the past decade. The percentage of graduates who land full-time jobs as lawyers—about 55 percent nationwide for the last three graduating classes—should rise significantly in coming years.

That is the silver lining. Now let us look at the dark clouds.

  • Tuition at many law schools continues to rise.
  • Debt levels for many law graduates remain extraordinarily high.
  • Many are admitting students who should not be in law school.
  • Bar pass rates will continue to decline in coming years.

These are very serious problems, particularly the collapse in admissions standards. That is why I do not share Dean Morriss’ cheerful take on the future of legal education. He is aware of these issues, of course, and his more positive view is premised on looking beyond when the current crisis shakes out. Even if we stretch the time period out a full decade, however, I don’t see the future he projects.

At least three formidable obstacles stand in the way: legal educators, the American Bar Association’s accreditation standards, and parent universities.

In Morriss’ account, elite law schools will continue to be academically oriented, enrolling students with high test scores and grades and sending many law graduates off to corporate law jobs. Fewer than two dozen law schools fit this category. Those that remain will be “mass-market schools” charging affordable tuition, with small full-time faculties bearing heavy teaching loads, supported by a large group of practicing lawyers teaching as adjuncts. There will also be “specialty schools” with expertise on an important area of law, with faculties engaged in significant research on that topic. And he sees “alternative legal services schools” that offer more limited training on matters like compliance or health-care regulations.

Let me address Morriss’ models in reverse order. Washington State’s recent approval of limited-license legal technicians is a significant step toward the alternative legal services model that he envisions. Non-lawyers already currently do a great deal of work like this for low-income people, like filling out and filing no-fault divorce forms. Much like the rise of nurse practitioners in medicine, this trend is likely to continue. But most of this training will be done in community colleges or other programs that currently train paralegals, expanding their offerings into areas like compliance, divorce, immigration filings, and so forth, supplemented by apprenticeships.

Law schools are too academic, not practice-based enough, and too expensive to serve this training market. As for specialty law schools, only a handful of institutions can fill this niche owing to the expertise required and the fact that it would only work for areas of practice remunerative enough to support specialization.

The bottom line is that the vast majority of law schools must become mass-market. And therein lies the rub.

Law educators will not go willingly. For the past two decades, the vast majority of law schools have built themselves on the academic model, with large faculties engaging in substantial research. Many law professors under 60 years of age were hired for their academic prowess and see themselves as scholars. They are accustomed to teaching no more than three or four courses per academic year, with substantial time and support to engage in research. Academically oriented professors are the bulk of law professors today and most will not retire or voluntarily depart in the coming decade. Any shift to the mass-market model will face stiff resistance from law faculties.

Accreditation standards for law schools established by the American Bar Association’s Section of Legal Education stand in the way of the mass-market model. This is a point that Morriss recognizes. A law school that approximates this model is Massachusetts School of Law, which has been denied accreditation. Accreditation standards (especially how they have been interpreted and applied) require tenure protection for professors; that the bulk of teaching be done by full-time professors; and that professors be accorded ample time to engage in research. These three requirements collectively prevent the mass-market model. A year ago, the ABA’s Standards Committee proposed to delete the tenure requirement, replacing it with strong contractual protections of academic freedom. Six hundred law professors signed a petition opposing the proposal, which ultimately failed to pass. For most of its history, the Section of Legal Education has been controlled by legal educators and has largely acceded to their wishes.

Universities will be reluctant to embrace the mass-market model. This is so for two reasons: as academic institutions, they value academic activities and reputation, and they want law schools to be positive revenue-generators. If law schools are to be reconstituted as bare-bones operations focused on training students to be competent lawyers at a reasonable cost, as the mass-market model requires, they will not be academic in orientation and will not produce much revenue for their parent universities. Consequently, the latter will not embrace this model unless they are left with no other palatable option.

Given these obstacles, there is no clear path from the current problematic state of law schools to the future of legal education sketched out by Dean Morriss.

What, then, is its near- and medium-term future? A decade hence, it will, in all likelihood, be much as it is today. Perhaps a dozen law schools will close or merge, but not many more than that. Elite law schools will be the same. Most other law schools will undergo contraction, with smaller faculties and fewer students, but not by much.

Law professors will teach four courses and their salaries will remain attractive—earning more than other college professors and above the average salaried lawyer—although only at elite law schools will faculty pay be lucrative. Most law professors will still engage in research.

Tuition at most law schools will stabilize at current high levels (in inflation adjusted terms), though tuition at elite law schools will go even higher, opening up a much greater price difference with non-elite law schools. Across the board, a law education will remain costly, except for tuition at about two dozen public law schools that keep prices relatively low.

The number of applicants to law school will fluctuate at present levels, in a band between 50,000 and 70,000. Law schools at the bottom end will continue to admit students with unacceptably low entering credentials, with many dropping out, failing out, or failing the bar. The ABA will keep current rules regarding faculty in place, and will not take any serious action against law schools to enforce Rule 501(b), which reads, “A law school shall not admit an applicant who does not appear capable of satisfactorily completing its program of legal education and being admitted to the bar.”

The obstacles I mentioned earlier, reinforced by institutional inertia, will keep legal education roughly as it is now, scaled down a bit, muddling along without fundamental change. There is, however, one unpredictable and critically important factor that has the potential to radically alter the face of legal education: the federal student loan system. ...

Legal education in its current form is propped up by these two programs. Graduate Plus provides students with unlimited funding, and IBR/PAYE relieves concerns they might have about taking on large debt. Both of them—thankfully for legal educators like me—will keep a steady supply of students entering our doors who are able and willing to pay high prices. ...

If both programs were to be cut back substantially, restricting the flow of money, law schools would be forced to operate more efficiently. If that happened, things would change in fundamental ways.

Samuel Estreicher (NYU), The Non-Virtuous Circle:

Dean Morriss’ essay, Reasons to Be Cheerful: The Future of Legal Education, is a welcome addition to the growing literature on what the present and future hold for law schools. He rightly emphasizes the role of competition and the need for greater diversity. And the stakeholders at Texas A&M University School of Law are indeed fortunate to have secured an energetic and creative new leader.

I am bit less cheerful about the overall situation. We essentially have one model of legal education in this country and it is largely based on the Yale Law School. It is a model that emphasizes the training of students to become either law professors or lawyers at elite law firms or non-governmental organizations. ... [This] “New Haven model” does not work for the rest of the country.

An ambitious young dean who wants to improve the reputation of his or her school will typically subsidize above-median-LSAT applicants, grow the LLM program, and put Yale Law graduates or wannabes on the faculty. The school is likely to move up a few notches in the reputational calculus, which pleases the school’s trustees. Despite this improvement in relative status and trustee approval, however, the school will in fact no better serve most of its students, who will have difficulty finding work and will not have the skills to practice on their own. They will also not be in a better position to serve clients.

This non-virtuous cycle is kept in place not so much by the requirements of the American Bar Association or state bar associations but more directly by state court rules, dating back to the early 1900s, which require three years of legal education at an ABA-approved school. This is a level of state regulation that does not meet the needs of most law students or most people and entities that need legal assistance. State courts have it in their power, without having to navigate the political shoals of the ABA and the Association of American Law Schools, to reduce the costs of legal education and prod law schools to do a better job training students to become lawyers.

The proposal that Verizon general counsel Randal S. Milch and I have advanced would urge state supreme courts to shift to a standard of only two years of required (and specified) law school courses and one year of a paid public service internship (with any legal employer) to sit for the bar examination and then become licensed to practice law. Students meeting this standard would be licensed but would not have received a JD.

Without the help of the law’s thumb on the scale, law schools would then work harder to “earn” the third year of tuition by offering competitive training opportunities that would truly be valuable enough to warrant another year’s debt and foregone income.

We need a real market for the third year and state supreme courts have it in their power to provide it.

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"Legal education in its current form is propped up by these two programs. Graduate Plus provides students with unlimited funding, and IBR/PAYE relieves concerns they might have about taking on large debt. Both of them—thankfully for legal educators like me—will keep a steady supply of students entering our doors who are able and willing to pay high prices."

For better or worse, both GradPLUS loans and PAYE & PSLF are under heavy scrutiny by Congressional Republicans tasked with reauthorizing the HEA. Under heavy scrutiny meaning "They want to curtail and/or repeal them." The last plan I have seen by Lamar Alexander would replace the handful of different lending vehicles (Stafford, Perkins, PLUS, etc) with one all-purpose loan - which is good for ease of use and understanding, but it would have a $150k grad school lending ceiling. The latest House plan includes the repeal of PAYE expansion and the end of PSLF, to the cheering of neoliberal think tanks who have long advocated for the end of those programs and who receive millions in funding from a foundation co-created by Sallie Mae.

Posted by: Unemployed Northeastern | Apr 20, 2015 5:44:38 AM

I just wish more law faculty were more honest about what has happened to the profession and to opportunities for young people. Yes, the truth will hurt enrollment, but it will make for a better and stronger profession.

Posted by: Jojo | Apr 20, 2015 7:34:19 AM