ABA Journal


The New Normal

D-Day for law school deans

May 1, 2013, 01:40 pm CDT


“Now that unsustainability is self-evident, the good news is it’s an acute enough problem for law schools that most deans are embarking on innovative approaches to address it.”

You mean severe. An acute problem is one that has a sudden onset and short duration. The problems with law school are chronic.

By BL1Y on 2013 05 01, 1:49 pm CDT

The crisis in the legal industry and legal education has been largely misunderstood and the methods being undertaken to solve these problems will ultimately fail.  There are many issues here that could be extensively addressed but I will limit my discourse to short questions and my answers.

1) Is there an oversupply of lawyers? Yes, but reducing acceptance rates or constricting the supply through more rigorous standards is not the solution.  In econ 101 you actually learn that oversupply exists when there is overpricing in the market.  Meaning lawyers are charging too much for the legal services they provide. This is likely more a failure of adequate business and economics training required for lawyers, than the debt burden.  Having worked in a law firm for several years it is clear that margins are excessively high and efficiency investments excessively low in the delivery of legal services.  Having also studied the business of law it is apparent that this is a wide spread problem and not isolated to a few remote areas. 

2) Does law school cost too much? Yes.  The downward trend starting in 2004 of those taking the LSAT and then actually attending law school signals that there is an oversupply of law schools, so as discussed earlier oversupply is a result of overpricing.  Further, because it is so expensive people have bundled job preparation and education, but if it were accessible to the common consumer this would not need to be the case.  Education itself would be the service being purchased. 

3)  Will lowering the price of law school, through reductions in the program like the two year option, lead to more legal jobs? In the short term possibly, but in the long term not to a significant extent.

The job market for US lawyers is being disrupted by two alternative providers, paralegals and LPO’s.  Both are substitutes being used instead of US Lawyers in the SME/Consumer and Corporate sector, respectively. I suspect these would account for much of the dislocation of US legal jobs, especially during the recession.  The education providers that produce these alternative providers are not regulated by the ABA, thus have more freedom to explore non-traditional methods of legal curriculum and education delivery.  The education programs producing paralegals are vastly less expensive than law school and focus more on practice skills.  Further, they are being offered at community colleges, universities, and online institutions.  LPO’s and the schools that educate their professionals take advantage of the exchange rate and cost of living disparity between the US and Foreign Countries.  The providers of these education programs for these professionals are not static in their offerings.  They will continue to look for ways to offer higher quality education to attract more students and increase their revenues. Because the rules of professional conduct allow non-lawyers to provide legal services under the supervision of attorneys there is no reason to assume lawyers would not continue using paralegals in the US instead of attorneys, especially if the education programs continue to offer high quality programs overtime and the paralegals take on significantly less debt than law students. 
4) Can the ABA change regulation such that applicants to law school increase and there more employment opportunities for lawyers? No.  Entrenched interests, the propensity to require higher quality, and the resistance to change present in the ABA will prevent new regulations being approved that reduce the cost of legal education.  If you are familiar with the theories of Clayton Christensen, the Harvard Professor who is the foremost expert on disruptive innovation, then you would know that disruptive innovations primarily originate from outside the incumbent organization.  Disruptive innovations being innovations that dramatically reduce cost and increase access. 

5) What could be done and who should do it?  The state bar associations are likely the best ones to offer changes, they are the most external organizations. If they want to see the access to justice gap be closed and the number of attorneys either remain at current level or increase over time as part of the their admissions standards they need to adopt the education requirements of the California Bar.  They allow ABA accredited and non-ABA accredited institutions to provide the legal training, but everyone must take the Bar Exam to become a licensed attorney.  It is the unbundling of the accredited education and bar exam preparation.  This will allow non-traditional, lower cost institutions to begin offering legal training.  An example of this is Concord Law School, the distance learning institution.  It has tuition of under $10,000 per year and a four year JD program.  That is more than 1/3 the cost of most other law schools.

By BCReed on 2013 05 01, 4:09 pm CDT

BL1Y:  Thanks for the better use of chronic vs acute.

BCReed:  Thanks, that’s a very discerning analysis.  What would you suggest?

By Paul Lippe on 2013 05 01, 4:39 pm CDT

Excellent and useful summary of important and overdue elements of reform of law school education as part of broader professional reform. Thanks Paul for your leadership on these important issues.

By James Strock on 2013 05 01, 5:15 pm CDT

@3 post #5 addresses my theory on what needs to happen.  The State Bar Associations need to adopt the education standards of the California State Bar.  That is the most efficient path leading to disruptive changes.  Law Schools, nor the ABA, will be able to take the necessary actions to produce disruptive changes. Even if someone internally proposed disruptive actions the entrenched interests would prevent them from being fully adopted and/or the organizations would starve them of the resources they need to be successful.  Large Corporations/Organizations, or in this case the ABA, need to understand that they do have limitations on what innovations they can produce. 

Clayton Christensen details these limitations quite thoroughly in the multitude of books he has written.  I would highly recommend those wanting to engage in disruption actually learn from the expert on the subject, prior to attempting what they believe to be disruptive.  His book “The Innovators Dilemma” gives a very good description.  He also has very informative youtube videos.  He actually speaks specifically about disruption of K-12 education and higher education by online learning platforms, which are lower cost and more easily customized for how the student learns best.  Since he is a Harvard Professor I suspect the legal community be more willing to at least hear him out.

Any state bars that want to reduce the number of attorneys in their state and see law schools close down should adopt stricter bar passage standards for law schools and require more practice experience prior to licensing.  If the ABA institutes these measures it will happen on a national basis. These measures will likely decrease competition in the market, drive up legal fees, drive consumers towards online alternatives, and increase pro se representation either on states or nationals, depending if the state bars or ABA approves them respectively.

By BCReed on 2013 05 01, 5:21 pm CDT

The only significant action I perceive the ABA and Law Schools could agree to do, which would lower the cost of becoming an attorney, would be to eliminate the college education prerequisite and create a LLB program that would allow students to take the bar after completion of a bachelors in law.  This has a greater chance of approval because they do it in many other countries and attorneys tend to need to replicate rather than innovate.  The two year option, although popular, is not a good business decision.  It doesn’t offer enough cost reduction and may promote a race to the bottom (i.e. 1.5 years, then 1 year, then certificate, etc.).  The LLB would erase 3 years of debt for each of the young lawyers and the law schools could continue to be 3 years. Law School is also actually structured much more like a bachelors degree program than a doctorate program anyways. Many of the law students wanted to do law school when they entered college but are being held back by this regulation.  The LLB might have some resistance, but allowing more online education, cutting the down education requirement to two years, and allowing paralegals to obtain some type of legal license in the long term would face much more resistance by lawyers and the legal education faculty.

By BCReed on 2013 05 01, 5:44 pm CDT

I think Denver University Law is looking at or has announced a 5-year program undergrad and law.  I’ll see if we can get them to comment.  Maybe other schools have as well.

By Paul Lippe on 2013 05 01, 5:50 pm CDT

What a pity that law schools have has their collective heads buried in the sand for so long.  Of course, that does nothing to help those of us who graduated in the past five years and have never been able to get into legal practice.

By 5th year JD on 2013 05 03, 2:53 pm CDT

Question 1:  How is this one to “score” for the New Normal? 

Question 2:  Shouldn’t you should wait until there is actually change, as opposed to talk about change? 

Question 3:  Why is that even the issue?  Other than you, I am not sure anyone sees it that way.

By Calling it like it is on 2013 05 03, 4:07 pm CDT

It seems to me the sort of “reforms” that Lippe is endorsing are beside the point.  What’s the point of preparing law students better for jobs if the jobs aren’t there?

Law schools have been “reforming” themselves to death for decades.  When I was in law school, most students took three years of doctrinal classes, and THAT was THAT- no legal writing (or legal writing taught by students or adjuncts or with large sections), very few clinics, no bar prep obsession.  If a student failed the bar it was HIS fault (or hers) not the school’s.  And the students produced by this process were arguably the best lawyers in the world.

In the name of “increasing skills” and making students “practice ready” the ABA loaded mandate after mandate on law schools, making them hire legal writing faculty, clinicians, etc. and imposing bar passage requirements that caused schools to spend more and more money on academic support personnel.  By a bizarre coincidence, tuitions went up. 

And as admissions decline, what are we being subjected to?  More costly reforms, of course.

So what’s the alternative?  Maybe costs coming down (if they do) will help- but if the jobs aren’t there, people won’t pay to go to law school no matter how cheap it is.

But knowing how cartels operate, this is what I think WILL happen:

1.  Deans will squeeze faculty, eliminating tenure and cutting pay.  The resultant revenues will not go to reduce tuition.  Instead, deans will do what college presidents have done- pay themselves more money and congraulate each other for their courage.  (That’s what seemed to have happened at the undergraduate level, so why should law school be different?)

2.  The top schools will persuade the ABA to raise bar passage standards for accreditation, thus making it impossible for lower tier law schools to deal with financial problems California style (i.e. for lower standards).  As a result, lots of schools will downsize massively or go out of business. This will be called “reform” too and it will be good news for the top schools since they will have less competition. (Lawyers will like it too, since they hate competition just like law schools do!)

By ML on 2013 05 03, 7:21 pm CDT

Thanks for the shout-out to Lawyers for America, which has been incubated at UC Hastings but is available to all law schools.  We hope that this program can simultaneously increase access to justice (by making lawyer trainees/new lawyers available at a reduced cost to nonprofits and government) and provide “medical model” highly-practical training to a subset of law students who will then be able to apply their well-honed skills wherever they please.  I do want to note our work creating Lawyers for America at Hastings began, with financial and institutional support from Dean Wu and Academic Dean Shauna Marshall, before the loud media cries for law school reform.  My colleagues and I are lucky to be working for a Dean for whom the need to “reinvent legal education” has been part of his DNA since he accepted this job.

By Marsha Cohen on 2013 05 06, 11:16 pm CDT

@ML Just because there is no demand for a $200 an hour attorney doesn’t mean there isn’t demand for an attorney. Attorneys have priced themselves out of what an average person can reasonably afford. I could cite numerous personal examples not the lease of which was representing myself in court during a college.

By Tuffy on 2013 05 09, 10:17 pm CDT

Law schools are extremely unethical.  They are leeches.

By Joel on 2013 05 09, 10:45 pm CDT

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