How screwed up is legal education these days? One mainstream publication recently published an article suggesting law students should be paid to not go to law school, while the paper of record noted that nobody learns how to be a lawyer in law school anyway.
That’s what it’s come to, folks. Can you imagine Slate, which is owned by the Washington Post, publishing an article suggesting that we should pay M.B.A. candidates to stop going to business school? Can you imagine the New York Times publishing a feature article about how medical students don’t learn anything in medical school?
Welcome to law school, the red-headed stepchild of American professional schools….
Let’s start with the New York Times, because they apparently just figured out that law schools do an atrocious job of preparing people to actually practice law. In a long article this weekend by David Segal, author of a series of hard-hitting pieces on legal education, the Times noted:
Law schools have long emphasized the theoretical over the useful, with classes that are often overstuffed with antiquated distinctions, like the variety of property law in post-feudal England. Professors are rewarded for chin-stroking scholarship, like law review articles with titles like “A Future Foretold: Neo-Aristotelian Praise of Postmodern Legal Theory.”
So, for decades, clients have essentially underwritten the training of new lawyers, paying as much as $300 an hour for the time of associates learning on the job. But the downturn in the economy, and long-running efforts to rethink legal fees, have prompted more and more of those clients to send a simple message to law firms: Teach new hires on your own dime.
We address this issue regularly, and we did so recently at Above the Law. The lack of practical training has been a problem with American law schools for a long, long time. Historically, law firms have accepted their role as lawyer “finishing schools.”
But with the clients no longer willing to pay for that training, “it’s a different ballgame,” according to Ian Nelson, VP of Practical Law Company (disclosure: a friend of ATL). Here’s how Nelson expressed it to us:
Of course we need to look at how students are being prepared for practice and real change needs to happen at the law school level. This will not happen overnight, so we need to explore ways that firms, legal departments and other interested parties in the legal industry can work together to deal with this very real problem.
Clients and their law firms have to react in real time to a challenging marketplace. But law schools are insulated thanks to the continued idiocy of prospective law students. The New York Times puts it this way:
The clients of law firms may be scaling back, but the clients of law schools — namely, students — are spending freely. Or rather, borrowing heavily. It is hard to imagine a 21-year-old without a steady income securing a private or federally guaranteed loan to buy a $150,000 house, but sums like that are still readily available for just about anyone who wants a doctor of jurisprudence degree. And while word of grievous job prospects is finally reaching undergraduates — there was an a 11.5 percent drop in applications this year — there were no empty seats in any of the 200 law schools in the country.
Don’t get me started on what 21-year-olds should and should not be allowed to do to themselves.
Into this unmitigated disaster of price gouging and lack of regulatory oversight, enter Yale Law School professors Akhil Reed Amar and Ian Ayres (who taught Lat constitutional law and contracts, respectively). They’ve got an idea. They propose giving law students a rebate after their first year of law school if students would just stop. Stop pursuing this (apparently useless) legal education, and the law school will refund half of your first year’s tuition. You get to keep all your fond 1L memories, the profession gets to weed out its weakest links, and the law schools have a financial disincentive from admitting anybody who can scratch out some LSAT answers and write a check.
Their idea was published on Slate. (Dear Slate: Please stop using photos of Harvard Law buildings when publishing the ideas of Yale Law professors. I know Harvard is prettier, more recognizable, and MUCH BETTER at football than Yale, but these profs deserve their correct photographic association.)
Here is what Professors Amar and Ayres propose:
Law schools might analogously offer to rebate half of a student’s first-year tuition if the student opts to quit school at the end of the first year. (If the student has taken out government loans, this rebate would first go to repay this debt.) A half-tuition rebate splits the loss of an aborted legal career between the school and the student. Each has skin in the game, so students will not go to law school lightly, and law schools will have better incentives not to admit students likely to fail.
The idea is to mark the end of the first year, after students have received their grades, as a salient decision-making point. At that time, students will have learned more about their legal abilities and inclinations. Law schools will also have learned more about each student’s abilities, and schools could now disclose how previous students with similar first-year grades fared after graduation. Students accepting the offer would be choosing to quit not just their school, but the pursuit of a law degree. Anyone who took the money but re-enrolled in another law school—within, say, five years—would have to repay the rebate. This would guard against the risk that good students would take the rebate and transfer to another school just to reduce their cost of becoming a lawyer.
After a few years, law schools could disclose what proportion of students, with varying grade profiles, accepted the rebate offer. They could even disclose the salaries of the former students who had accepted the rebate offer and left the school. This comparative disclosure would provide applicants with powerful new information to make better decisions about whether to continue their legal careers.
Talk about the theoretical over the practical. There is a lot to like about this idea, but it proceeds from a faulty assumption. Amar and Ayres assume that either law schools or a body that regulates law schools have an interest in improving the outcome of legal education or saving money for the American taxpayer.
Neither is true. Right now, we can’t even get law schools to accurately disclose the employment outcomes of recent graduates. We can’t even get the ABA to ask the right questions. How could we possibly get law schools to ever put their financial interests behind the quality of their education?
At the end of the day, this all comes down to the lack of responsibility and critical thinking on the part of individual prospective law students. Law students are not practically trained because they don’t go to law school to be practicing attorneys. They go to law school because they love to “argue,” or “defend rights,” or some nonsense that has little to do with day-to-day lawyering. When they do go, they think little of the long-term financial future they are mortgaging on a law degree.
Maybe law is the red-headed stepchild of American professional schools because law attracts the weakest applicants. Medical schools attract people committed to years of rigorous training, long hours, and low pay. Even business schools at least attract “bros” who are not afraid of “math.”
Who does law school attract? Everybody else.