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Thies, D --- "Rethinking legal education in hard times: the recession, practical legal education, and the new job market" [2011] LegEdDig 24; (2011) 19(2) Legal Education Digest 26


Rethinking legal education in hard times: the recession, practical legal education, and the new job market

D Thies

Journal of Legal Education, Vol 59, 2009-2010, pp 598-622

Legal education has always been shaped by the underlying economic realities of the educational system and the legal profession. The earliest formal legal education in America developed as practitioners sought to supplement their incomes by taking on apprentices. Langdell’s case method, for all its other virtues, ultimately became a dominant paradigm largely because it allowed large class sizes, and thus cheap education. While the economic forces at play in these examples were not the only factors influencing the shape of legal education, they set both its boundaries and the goalposts.

The economic recession that began in the United States in December of 2007 will likely have a significant effect on both of these variables. The recession’s effects – rising tuition, scarce student loans, and a poor job market – are pushing legal education to the breaking point.

At the same time, the recession is causing legal employers to put a premium on job candidates with practical skills – those on whom they will not have to spend time and money before they are ready to practice. Law schools that want to produce graduates competitive in such a market will thus have to adjust their priorities. No longer can schools continue to subsidise academic research at the expense of teaching practical skills to their graduates.

The economic recession of 2008-2009 has placed unprecedented stress on the legal profession. To fully understand how the market is likely to change the legal profession, however, one must first understand how the profession has operated in recent years.

The large law firm model that has predominated in recent decades emerged during the 1970s and 1980s. Under this model, law firms maintain a leveraged ratio of associates to partners, sometimes employing as many as five non-equity lawyers for every equity partner. For every new associate a law firm hires, profits increase, at least as long as there is enough work to keep everyone busy. This engine for prosperity comes with a large proviso, however. As younger lawyers move up the ranks, many of them must leave the firm to maintain the pyramid structure and the high profits. Firms using this model thus need to constantly hire a large number of new associates to replace the attorneys that leave the bottom of the pyramid.

At the same time, however, a firm cannot scare away young associates too early, or it will not earn back the investment it has made in hiring and training the young lawyer. To solve this problem, the pyramid model must hold out a credible promise of promotion to partner for a certain number of associates. Consequently, the pyramid model causes law firms to engage in intense competition for top graduates, including ever-expanding associate salaries and lavish summer programs.

This model has had a profound influence on legal education, creating a situation in which law schools had little incentive to ensure that their graduates had sufficient practical training at graduation.

As a result of the pyramid organisation of law firms, young lawyers had little need to learn practical skills during law school. In contrast, lawyers learned most of their practical skills during summer work experiences or from their first jobs, including oral communication, written communication, negotiation, counseling, legal problem solving, client relations, and drafting. As the job market has broken down, however, this reality is beginning to change.

The catalyst of the current troubles, as far as law firms are concerned, is a decline in demand for legal services. Consequently, law firms are having difficulty bringing in enough work and revenue to support their highly leveraged structure and inflated associate salaries.

One response has been to replace some associates on the bottom of the pyramid with contract attorneys. These attorneys, who are hired only for temporary assignments, are significantly cheaper than associates, and need not be retained during slow periods. Another common response is to increase the number of staff attorneys who either will not be considered for partnership or have already lost out on a promotion to partner.

What does this emerging law firm model mean for new law school graduates seeking jobs? These trends likely will create a job market that places a greater premium on graduates with practical legal skills.

Large law firms have a profound effect on the entire legal job market. As the flagship employers of the legal profession, their decisions have a trickle-down effect on a wide range of other areas. It is useful, therefore, to say a word about how the economic recession is affecting other areas of the legal job market to complement the new focus on practical skills in large firms.

First, smaller firms, public interest groups, government agencies, and corporate legal departments will have more access to top attorneys in the job market, particularly in the short term as attorneys laid off from large firms bloat the applicant pool.

Second, the federal government’s response to the financial crisis will also cause greater demand for young lawyers with practical skills. The government will likely employ an increasing number of lawyers in the coming years as the Obama Administration implements the stimulus package and enhances government programs. Moreover, after the initial glut of layoffs from large firms, the new large law firm model with less attrition will mean fewer attorneys seeking to make lateral moves into government. The government will thus have to rely more on new graduates to fill its ranks.

Unlike large firms, most government employers don’t have the luxury of hiring entry-level lawyers simply to do legal research. Lean budgets mean lawyers are given lots of responsibility right away. Government hiring attorneys, therefore, emphasise the practical skills applicants bring to the table, not the prestige of attending a particular law school.

Even though the government will have to hire more attorneys directly out of law school, they will still expect these attorneys to have practical training. The pressures from this job market will also put a premium on practical experience.

The job market’s new emphasis on graduates capable of practising law right away will thus come from multiple areas. The looming question is then whether law schools will be in a position to provide such graduates.

Because the job market will favour job-seekers with proven practical training, the market will ultimately reward law schools that can deliver a skills education at a reasonable price.

Graduates from elite schools will likely still be able to secure high-paying jobs, and these schools will thus continue to attract the most-qualified students. For more marginal law schools, however, the new job market will present a significant challenge. Such schools will only attract students if they can ensure them a good return on their investment. Many law schools will thus face more pressure than ever before to emphasise practical training.

A number of reports over the last century have recommended that legal education move in precisely this direction, including most recently the ABA Section of Legal Education and Admissions to the Bar’s 1992 MacCrate Report and the 2007 Carnegie Foundation Report, Educating Lawyers.

Nonetheless, the traditional law school curriculum has proved remarkably resilient, resisting integration with the new skills training curriculum and keeping it on the ‘periphery’ of legal education.

Professor Sonsteng identified a number of factors that have discouraged reform, including the resistance of traditional tenure-track faculty who prefer to focus on research, the lack of meaningful assessment of graduates’ capabilities, the emphasis of law school rankings on prestige and research output rather than practical skills and teaching, and the high cost of implementing a skills curriculum. Together, these factors ensure that, to the extent reform has come, law schools have simply added a skills curriculum to their current programming rather than change current practices by reforming curricula or reallocating resources.

The Carnegie Report calls this approach merely ‘additive,’ and suggests that it is inferior to a more comprehensive ‘integrative’ approach in which practical skills are worked into the traditional curriculum.

Even as law schools have continued to pour resources into academic scholarship, this scholarship has become increasingly disconnected from the concerns of practising lawyers. Professor Anthony Kronman argues that the two most influential academic legal movements of the last half century – law and economics and critical legal studies – both downplay the importance of practical legal skills and ‘depreciate the value of practical wisdom’. Both of these movements seek to explain developments in law through reference to other disciplines, rather than cultivating the skills unique to a lawyer that are most relevant in a practice setting.

The twin dominance of these schools of thought in the legal academy means that few works of scholarship today provide anything of use to practising attorneys or judges.

Law schools facing the realities of the new job market will thus need to reconsider their prioritising of legal scholarship over practical training. Despite the barriers to reform that have slowed the development of skills training in the past, the economic crisis means that law schools will have an unprecedented incentive to evaluate each part of their curriculum and the contribution it makes to the training of their graduates. Over the coming decade, law schools may be more willing to integrate skills training into the traditional curriculum or to cut the subsidy for academic research.

The ABA Section of Legal Education and Admissions to the Bar is the accrediting agency for law schools in America. Although it has been criticised frequently for using this power to maintain a monopoly over legal education, it remains the nerve centre for a wide variety of interest groups touching every aspect of legal education. As such, it possesses a unique ability to coordinate any broad response to the economic crisis and can take several steps to assist the transformation of American legal education as it responds to that crisis. These steps fall into two categories. First, the Section can improve the dissemination of information to prospective law students, thus facilitating the market-driven transformation of law school programming in a pragmatic direction. Second, it can reformulate its requirements on faculty composition, recruitment, and tenure to ensure that law schools have the flexibility they need to be competitive in the new market.

The argument of this essay so far assumes the proper functioning of markets. Because legal employers will seek graduates with more practical experience, graduates with such experience will be better positioned to find a job and pay off their loans. Prospective students should, in turn, demand schools that will provide this practical training at a reasonable cost. If a school cannot prepare them to be competitive in the new job market, students should not choose to attend that school.

The functioning of this second market depends on students having adequate information to decide whether to attend law school, and to pick the right law school.

And yet, although an unparalleled amount of information is available, potential students may be more ill-informed on this point than ever before. The Forbes article quoted above identifies the lack of accurate information in this area as one of the key components of the higher education ‘hoax’ that schools are perpetuating, describing higher education as ‘a self-serving establishment trading in half-truths that exaggerate the value of its product’.

The problem is exacerbated by the dominance of the U.S. News & World Report rankings. According to the Wall Street Journal, ‘prospective students are voracious readers of the annual U.S. News rankings’ and frequently rely on them to inform their decisions about law schools. The rankings, however, are not well correlated with the return a student can expect on his investment, particularly after one gets past the elite schools at the top. Forty percent of the rankings score now comes from prestige, a factor often based on the amount and quality of research a school produces. Thus, it encourages schools to focus on a scholar’s academic output, rather than on his or her teaching ability, and to increase tuition to pay for more research while transferring resources from other areas.

The ABA Section of Legal Education could mitigate these problems by ensuring that students have the information they need to accurately assess different law schools, especially in the area of employment after graduation.

In addition to providing more useful information to graduates, making such data public may encourage U.S. News to change its rankings methodology. Other than the controversial prestige score, the U.S. Mews rankings criteria closely track the information the Section requires schools to report. U.S. News currently considers incoming students’ LSAT scores, undergraduate GPA, and acceptance rate, graduates’ employment rate and bar passage rate, and the school’s expenditures per student, student/faculty ratio, and library resources.

Moreover, U.S. News has explicitly signaled that its criteria will follow the information the Section requires in the accreditation process. According to the 2009 edition of the U.S. News rankings, ‘when the American Bar Association’s 2008 Annual Questionnaire changed how law schools reported their first-time test takers bar passage results to the same calendar year, U.S. News changed our calculations’. Thus, the Section should not underestimate its influence on the U.S. News rankings. Simply by changing the information law schools must produce, the Section may change the rankings system.

This gives the Section significant power to lessen the perverse incentives the rankings provide for a law school to increase its ‘prestige’ at the expense of the educational experience of its current students. By forcing law schools to divulge more and more accurate information about the outcome of its students’ education, the Section can encourage U.S. News to emphasise the same factors in its rankings. With more accurate information, the market should then take over as students who wish to succeed in the job market gravitate to those schools most able to facilitate their success.

As schools react to these market pressures, they will likely try a wide variety of tactics and innovations to improve their education at a low cost. Many of these innovations can be accomplished while remaining well within the current accreditation standards. For example, Professor John Sonsteng has noted that the accreditation standards treat tenure-track and full-time contract faculty identically for purposes of calculating the student/faculty ratio. Consequently, a school could replace half of its tenure-track faculty with twice as many full-time contract faculty, thus providing three times the number of teaching hours at a comparable cost. Transferring resources away from scholarship and toward teaching in this way would provide schools with significant opportunities to improve their practical training.

However, other potential innovations are currently discouraged by the accreditation standards. Many of these restrictions are necessary to ensure that students do not receive a subpar education. Nonetheless, the Section must ensure that its standards do not unnecessarily restrict innovation. One area of potential concern is the standards’ treatment of adjunct faculty. Practising lawyers and judges are uniquely situated to help schools address the challenge of providing a practical education at a reasonable cost, and the standards should not restrict schools from experimenting in this area.

In addition to providing huge cost savings, adjuncts are also well-suited to help schools integrate the practical and theoretical aspects of legal education. Because of their ongoing practice experience, ‘adjuncts will have an enhanced sense of how to meld the theoretical and the practical, and they are generally more focused upon how to use the law strategically to accomplish client goals’. This unique experience allows adjuncts to supplement the traditional teaching students receive from full-time faculty, and gives them a unique credibility to teach the nuts and bolts of law practice to their students.

Adjuncts can also help a school provide a wider variety of course offerings, thus giving students the opportunity to develop a unique specialty that will make them more competitive in the job market. Few schools have the resources to provide a full-time faculty member with detailed knowledge of every area of the law. Adjuncts can help to fill in the gaps, often teaching courses like sports law, intellectual property, entertainment law, bankruptcy, and upper-level commercial law offerings. Finally, adjuncts are well-connected in the job market and can provide assistance to students looking for employment.

There are potential downsides to the use of adjuncts. Adjuncts are typically less available to students than full-time faculty, complete less scholarship in the areas in which they teach, are less integrated into the law school culture, and may be inexperienced teachers. While these criticisms of adjuncts are all accurate, a number of articles and guides published recently can help schools avoid these pitfalls. The Section has already provided guidance in this area with the publication of its Adjunct Faculty Handbook, and it should continue to explore the benefits and dangers of using adjunct faculty while advising schools in this area.

For example, schools can compensate for the fact that adjuncts may be less available by taking advantage of the smaller class sizes adjuncts allow. Four adjuncts teaching four courses of 20 students each may provide more face time per student than a single full-time faculty member teaching a typical course of 80 students. Second, schools must be careful to invest sufficient time in the hiring and training of adjuncts. Adjuncts who perform poorly should not be rehired. Schools should also recognise the unique strengths of adjuncts and use them where they will be most effective, including as teaching assistants to full-time faculty in legal writing or clinical courses, and to teach specialised upper-level courses’.

Schools should also take advantage of opportunities to integrate adjuncts into the classroom with full-time faculty. Not only will the students benefit from this experience, but the adjuncts will have the advantage of observing the full-time professor at work, thus providing the school with an experienced pool of adjuncts to draw on later to teach other courses.

A school that can use adjuncts effectively and manage them well should be able to improve its educational program while restraining the rise in tuition.

The economic recession presents a unique opportunity for legal education to shift its priorities. Rather than using student money to subsidise academic research from full-time professors, successful schools will need to seek new ways to train students in practical skills. Only then will schools continue to be able to attract qualified students. There are many different ways that a school can achieve this end, and no two schools’ solution will look the same. As long as prospective students have sufficient information and schools have the flexibility to try different solutions, however, the law schools with the best programs will begin to rise to the top.

Legal educators have spent much of the last century thinking about how to integrate practical training into the law school curriculum. To echo the MacCrate Report, ‘in sum ... the time has come to put the pieces together’.


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