The debate over “practice ready” legal education continues. Some schools aggressively tout their new clinics and secretly (or not-so-secretly) hoped that the ABA would let them abolish tenure altogether so they can start exclusively hiring cheaper instructors. Opponents defend the difficult position that a hundred-year-old educational model based around cloistered professors should be left more or less untouched.
That’s why articles that take unique, nuanced approaches — like tackling the issue from the perspective of encouraging professors, rather than students, to take time out to practice in the “real world” — are so intriguing. Here comes another one from a professor who attacks a lot of the underlying premises in this debate by really asking what a practice-ready education would really look like.
The answer is a lot more like med school, which is probably not going to make a lot of people happy….
Peter Shane, a professor at THE Ohio State University Moritz College of Law, is not impressed with the argument that eliminating tenure “could offer students a lower-cost, more-practice-centered curriculum.” He makes the obligatory, self-serving pitch that law professor scholarship is important to society, which is debatable, but we can’t fault him for trying. But after that, Professor Shane attacks the logic behind the idea that cheaper instructors will result in lower tuition:
Second, even if costs could be forced down, students would find law school more affordable only if lower costs were reflected in lower tuition. Yet tuition probably moves less because of the cost of running a law school than because of the perceived market value of a law degree upon graduation.
Sadly, this perceived value is itself based on either willful ignorance on the part of law schools or an intentional shell game designed to confuse incoming students. Probably a toxic mix of both.
Third, lowering costs will benefit law schools only if the strategy attracts more students. But the people who do the future deprofessionalized legal jobs will surely be paid less than current lawyers. If prospective students are disinclined now to apply to law school because they anticipate a low return on tuition investment — a view, by the way, susceptible to critique — there is no reason why giving them a cheaper education for lower paid jobs is likely to offer a better outcome. This is especially so if the degree does not equip a student for a long-term upward career trajectory.
No, it’s not susceptible to critique.
But if law schools don’t want to be in the business of training permanent document review attorneys, what should they do?
Legal education suffers from an obvious peculiarity — it is possible to become licensed as a practicing lawyer without ever having represented actual clients. Experiential learning doesn’t necessarily equal a supervised apprenticeship. Yet I think it impossible to develop the kinds of judgment one needs to be an effective lawyer except through actual interaction with real clients.
The most straightforward cure for this lack in legal training would be attaching some sort of “teaching law firm” to law schools. Following three years of classroom study, students could work for a year or two, with pay, alongside master lawyers hired as clinical faculty members. Students would begin not only to develop good legal judgment, but also to internalize a lot of the legal craft and teamwork skills that come with practical experience. If access to legal services were underwritten by some form of insurance for low-income individuals and small businesses — just as Medicare helps to finance teaching hospitals — we might well have a viable model for improving both lawyer training and public access.
This is definitely moving in the opposite direction from the comfortable and superficial two-year law school argument. Not that the third year accomplishes much or remotely justifies the cost, but if there’s any advantage to the wasteful debt prison of the current model it’s that at least some students opt out of law school. Lowering the barrier for a student to get a law degree is just making bad decisions cheaper, not reducing the number of bad decisions.
Professor Shane is at least thinking outside the box. Keeping the third year of law school is still unnecessary even in his proposal (maybe he has a Law and Pokémon class to protect), but two years of class followed by two years of a residency moves the ball of “practice ready” instruction in the direction of something more significant than offering 6 months as a glorified paralegal. It may be a pipe dream to hope for more government funding for improving access to justice, but tying that funding to a legal education might rattle some cash out of cynical legislatures and relieve some of the pressure on all of us — especially solos — to address the access crisis. And even if it’s not a lot, Professor Shane’s model starts paying law students for their work, so adding a couple years to the process (and only one in my modified version of Professor Shane’s model) isn’t financially devastating.
On the downside, this two-year “coming of age while representing the poor” idea seems like dangerously fertile ground for a terrible CBS show.
This proposal may not be perfect, but this thought experiment is at least more productive than the current model where we accept the cycle of pumping out deeply indebted students and then shrug our shoulders ruefully when those students run to the private sector because they need to get paid to service the debt and the justice gap gets bigger.
Maybe the more intense model that Professor Shane outlines just isn’t something certain law schools want or feel they can
profit from afford. Well, he has an answer for that:
Of course, it may turn out that the market cannot sustain 200 accredited law schools boasting programs of teaching and research that introduce students not only to the current practice of law, but also to the history and operation of legal institutions, the social and economic challenges lawyers are expected to confront, the ethics of the profession, and the contested nature of justice. If so, we should have fewer law schools. Legal education should not have more modest ambitions.
Fewer law schools. Perhaps someday, like with med school, all the students eyeing legal diploma mills will have to go to Grenada too.
The True Spirit of Law-School Reform [The Chronicle of Higher Education]