By: Margaret Martin Barry
I suspect that like many others in legal education, I turned to the final word from the Task Force on the Future of Legal Education with interest and hope. After all, it has become the poster child for the growing crisis in higher education. We recognize that there is high personal and public value in an educated populous. That accounts for our investment in elementary and secondary education. However, unlike many of our Western counterparts, we limit our investment in higher education to loans, program-based grants and ever diminishing contributions to state schools. What the report describes as the tension between the public and private value of legal education is not so much a tension between these two values as a lack of collective will to invest in our future through education.
This does not mean that higher education, including law schools, is off the hook with regard to addressing costs. There is evidence that law schools have gone to task in doing just this. However, it is unrealistic to look back to a day when law schools were less expensive and conclude failure if the earlier benchmark is illusive. Higher education costs more today. Similar to others in higher education, law students need and expect access to technology, high quality education that expands and refines their thinking and effectively prepares them for the work they hope to do, academic support, career support, and support for extracurricular activities that nourish their academic and professional development. To produce this costs money.
Central to the production costs is having faculties that are dedicated to meeting educational needs, needs that are part of the public and private bundle of values the Task Force references. While one may question the historic inflexibility of law school faculties in the face of critique of their educational priorities, I know I have, the inflexibility has been essentially born of a fundamental disagreement with regard to what constitutes high quality in legal education and priorities in maintaining that quality.
As the Task Force points out, the decibel level of criticism coupled with uncertainty about the market for legal services has induced a “climate receptive to change”. Many law schools have engaged in cost cutting measures and curricular redesign. Support for teaching is no longer limited to the broader support for scholarship, and the trajectory towards reduced teaching loads to support increased production of scholarship is halting, or at least being reconsidered.
Law schools and their faculties are also less certain that their task is sufficiently achieved if legal education is limited to the exercise of covering a body of doctrine and learning to think and write in a certain way. Other skills that are part of the value a legal education should provide are making their way into the core goals for providing a quality legal education. Slowly, the old dichotomy between what the 2007 Carnegie Report described as “knowledge” and the other competencies that a legal education suggests, which Carnegie referred to as “skills and values” is breaking down. Yet the Task Force identifies dichotomy without recognizing its limited value or acknowledging its growing irrelevance:
“…[I]t is commonly stated that the basic purpose of law schools is to train lawyers, but there is no consensus about what this means. It matters greatly whether, for example, one takes a view of lawyers as deliverers of technical services requiring a certain skill or expertise, or as persons who are broad-based problem solvers and societal leaders.”
Can one seriously deny that lawyers deliver technical services requiring not a certain skill but a range of them? Are problem-solving and leadership skills somehow relegated to another strata that can be disaggregated from the professional role? The Task Force goes on to correctly point out that a law school’s “views about purpose may not be reflected well in the curriculum”. However, this is not because of such a narrow view of what lawyers do but a limited, though evolving, view about the extent of law school’s role in preparing them to do it.
To move law schools along the path of change, the Task Force speaks much about heterogeneity. I certainly value diversity, but when it comes to what law schools should offer, there are considerations not specifically addressed by the Task Force that should be expressly understood before we get too far down the path. Society, including the law student, has an interest in knowing that a graduate of a law school has a working foundation in the work that lawyers do. We can discuss whether this expectation is realistic, whether indeed clinical legal education is the answer or post law apprenticeships are inevitable or legal education should train specialists instead of generalists, but legal education has for some time promised more than we produce. Now that the cover provided by the law firms and agencies that provided post graduate training is eroding, the reality of the limitations of traditional legal education is more apparent. Expansion of clinical offerings and outreach to the bar are manifestations of this recognition.
Connected to its assessment of the financial burden of law school, the Task Force speaks of the need for more limited training that would allow for greater service to those who cannot afford the debt laden lawyer. It referenced the Limited License Legal Technician provisions that Washington State has been rolling out. Limited licensing may well be inevitable for a variety of reasons, though without specific funding for the services they would provide, it may not do much more than what lawyers offering unbundled services and pro bono legal services are currently seeking to do for those unable to otherwise afford legal service.
The Task Force proposes several new entities within the ABA to address cost, debt burden and assessment and improvement of legal education. It does not discuss where these entities should fit in relation to the existing Section of Legal Education and Admissions to the Bar. However, it does goes on to list a number of Accreditation Standards and Interpretations of Standards that the Council of that section should “eliminate or substantially moderate”. I believe it is fair to say that several have been under significant reevaluation for the past several years. What I found of concern from a Task Force that took a year to produce its report is the fact that it listed the Standards and Interpretations without connecting their existence or elimination to goals for the quality of legal education, or even directly to cost reduction.
For example, while one might argue that the current detail in interpretations 402-1 and 402-2 are byzantine and not directly related to ratios in a given classroom, is it enough to say that a law school must have “a sufficient number of full-time faculty to fulfill the requirements of the Standards and meet the goals of its educational program”, which is what would be left if the interpretations are eliminated (something that is currently proposed by the Sections Standards Review Committee, by the way)? Once we identify full-time faculty as a basis for developing a student faculty ratio, what do we do about administrators and those full-time teachers that a law school might not identify as faculty? What benchmark do we have for enforcing this indicator of quality? If we are responding to concerns about costs, should classes of 300 students be acceptable because it is cheaper and arguably meets educational goals that can be identified?
Similarly, if we throw out Standard 405, and 206(c) and 603, what are we saying about leadership in law schools? Why, at the core, does higher education value security of position? It has long been understood that such security attracts those who value legal education and want to dedicate themselves to the teaching, scholarship and service that is expected to maintain and improve law schools that have, for all the flaws identified and assessment in progress, managed to provide significant educational value. The idea that tenure is dragging law schools down ignores not only the dedication of many law professors, but their ability to speak to the educational mission they serve instead of being ignored or dismissed by administrators who may be more focused on a bottom line than balancing the equally significant institutional purpose.
The report also spends time discussing generally the need for greater ability to innovate, suggesting that the ABA Standards inhibit heterogeneity. While I agree that the variance process should be made more transparent and that successful innovations should lead to appropriate regulatory modifications, it is worth reminding ourselves that not that many schools have innovated within what is currently consistent with and arguably encouraged by the existing Standards, much less sought variances to go beyond them. It may well be that far more than underscoring differences, we first need to be more certain than we are about what constitutes a sound legal education, at any institution. The end result may not be as homogenous as the Task Force fears, but it should provide greater assurance of reliable preparation for the profession.
All this said, I am grateful to the Task Force for undertaking this project. I know it reflects a lot of work over and above busy schedules. Given the membership and some of the input entertained – indeed, given the waves of criticism that legal education is facing coupled with uncertainty about legal service market, I dared to hope for something more than additional committees, cursory comments on accreditation standards that have already been the source of significant discussion, and a call for law schools to reduce costs and other steps the vast majority are already undertaking. Maybe the message is that there is nothing new to add, we will continue to mull it all over, propelled relentlessly by evolving markets and minimal public commitment to the value of higher education.