Legal Education: Mend It, Don’t End It
The following piece by Washington and Lee University law professor A. Benjamin Spencer originally appeared on the Washington Post’s website and is reprinted here with permission.
By A. Benjamin Spencer
These are challenging times for legal education. The legal job market is eroding in ways not likely to improve in the near term, if at all. Fundamental change is afoot in the legal profession. Some tasks previously performed by lawyers—such as document review—are now performed by computers here or legal workers offshore, or simply by cheaper in-house staff or contract attorneys.
Law firm business models must change in response to these developments. This may mean alternative billing arrangements or moves towards tiered attorney structures offering lower pay and opportunity to lawyers who sign on to do routine legal work at less cost.
These developments have also laid bare defects in legal education, putting pressure on law schools to innovate and improve if they hope to survive. During better economic times, law schools operated under the assumption that their graduates would receive practical skills training on the job, at the expense of their employers.
Today, law firms are no longer willing and able to train recent graduates. Consequently, law schools must fulfill this role. In the wake of a 2007 report of the Carnegie Foundation for the Advancement of Teaching, many law schools are making their academic programs more balanced. They are supplementing the traditional cognitive learning traditionally associated with law school with more practical and ethical instruction. The goal is to create competent legal professionals who are prepared for practice upon graduation.
Unfortunately, the need for these changes comes as student loan debt is escalating to unsustainable levels when law graduates are least able to bear it given the thin job market. Cutting law school costs now is challenging since such cuts could undermine the schools’ ability to offer the practical, experiential learning that they are being asked to deliver.
Some have even suggested getting rid of law schools and bar admissions requirements. The argument is that a free market for legal services would permit new entrants to drive down prices through competition. Quality control would be left to customers’ word-of-mouth.
While it is worth exploring how barriers to entry adversely impact access to legal services while imperfectly protecting the public from bad lawyers, total deregulation would likely make matters worse. In the early 20th century the medical profession was deregulated in the sense that there was an abundance of medical schools of widely varying quality, resulting in poorly qualified physicians being unleashed on the public. That ended after another Carnegie Foundation report—the Flexner Report—insisted on the model of medical education that we have to this day.
Some might argue that today we have an abundance of law schools of varying quality churning out graduates who are not ready to practice and who can’t get jobs. But if that is true — and it may be — how would formally deregulating the industry make the situation better? Doing so would allow even lower standards; costs would drop, but so would quality. This is unacceptable; quality legal services help ensure the rule of law in our democracy.
The better solution is to reform law schools by offering a better balance of the doctrinal, skills, and values education that students need to become competent legal professionals. The ABA, in its role as accreditor of law schools, should make sure its standards allow the freedom to make these changes.
Reforming admission to the bar should also be considered. For example, rather than making the bar exam a concentrated experience, the certification process could be extended over a period of years as with the various steps of the U.S. Medical Licensing Exam. Law graduates could be required to take an initial doctrinally focused exam followed by a probationary period during which they would work for less pay under the supervision of practicing attorneys. That, in turn, would be followed by an exam that tests their practice skills.
Although some of history’s greatest lawyers never attended law school, the world in which we live today is exponentially more complex; preparing to practice in this environment requires specialized training. Less training may be necessary for simple matters. Perhaps law schools could be more flexible in the degrees they could offer — e.g., a one-year degree for those who will do routine legal work as clerks under a lawyer’s supervision and a full two- or three-year J.D. degree for those who intend be licensed to practice as attorneys.
These are challenging time for the legal profession. Innovative thinking is not only welcome, but imperative. However, let us focus on being expansive and creative in how we re-imagine legal education, rather than embracing counterproductive measures that would only make the state of the legal profession much worse.
A. Benjamin Spencer, a professor of law at Washington and Lee University School of Law and a visiting professor at the University of Virginia School of Law, is the chair of the Virginia State Bar Section on the Education of Lawyers.