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Class Action Countermeasures Discussions of the Strategic Considerations Involved In Class Action Defense

Five Ways to Mitigate the Crisis in Legal Education

Posted in Scholarship, Strategy

 In the past year, there has been a spate of criticism of legal education. The upshot: it’s too expensive, it doesn’t actually train new lawyers, and it produces a lot of scholarship of no use to practitioners or judges. Pair this rising criticism with rising educational costs and rising legal unemployment, and it is hard to deny that law schools are facing a real crisis of legitimacy. As a very large consumer of legal scholarship, and a big fan of well-educated lawyers, this worries me.

From what I’ve seen, there are a few questions that espouse a few occasionally conflicting goals:

  1. How do we reduce the cost of legal education so law remains a career available based on merit rather than money?
  2. How do we make sure that the teaching of law remains relevant to the practice of law?
  3. And, not to be underestimated: how do we make sure that law remains a learned profession that produces high quality thinkers?

So, in the spirit of trying to help out with "good strategy," [] here are five suggestions, some new, some floating around, for how we might reach these three goals with a coherent plan of action. (What’s the "nugget"? Produce well-trained, well-educated lawyers.)

  • Require briefs instead of exams. I’m sure it’s easier to grade exams. But–except for the bar–lawyers don’t take exams. We write briefs (or deal documents). We argue in court. We advise clients. We negotiate with people. Start teaching to what the lawyers actually do. (This wouldn’t just help the students; it would also give a small leg up to all of those professors who envision themselves someday becoming federal judges.) Might this require reducing class size? It might. I’m not sure that’s a bad thing.
  • Ditch casebooks; teach out of current cases. The best education I ever received in my field (and I was lucky to learn from some great lawyers) was writing a book on class actions, and then starting this blog. Why? Because it forced me to read through many many cases, mostly current, but also working my way back through older ones with lots of influence. I have no doubt casebooks are helpful to professors. But they’re also very expensive. Why not just teach the students out of both the classic and the current cases? Just like young lawyers learn? Get them straight to the primary sources. It will hone their research skills at the same time as it reduces their expenses. 
  • Cut the ABA’s physical library requirement. Look, I love books. I am a huge fan of books. But, particularly in the law, I have been cutting the number of books I actually own. And you know what? I don’t miss them. I can do most of my research (both for cases and for my other writing) either online or at least onscreen. Electronic books and cases are easy to search and annotate, and are increasingly where most people turn. So why do we still need–particularly for newer schools–these large buildings that are expensive to maintain and full of physical books no one uses? I’m not saying we should get rid of the D’Angelo Law Library, necessarily. But for smaller schools further down the rankings, this would be a cost-effective way to provide the same services the bigger schools use.
  • Fewer tenured faculty; more practitioner adjuncts. This one has been a popular suggestion. And we are lucky in the class-action field that we have a number of good professors who have been class-action practitioners.  But we could certainly use more people who have spent significant time in the trenches. At least some deans have complained that one of their schools’ largest fixed expenses is tenured faculty. There’s a simple fix for that. (And let’s be clear; I know and like many fine tenured law professors.  And the ones I know are–to a person–good people doing good work. It does not please me to suggest cutting their jobs. But it also does not please me that many younger lawyers I know are struggling, or that many students I know are considering going into a profession that will bleed them dry with educational debt.) How would I envision doing this? Require a Ph.D. and J.D. for the tenured faculty, and reduce their ranks accordingly. (This allows you to maintain the "research institution" where possible.) For your adjunct faculty, take high-achieving J.D.s. Sure it’s disruptive, but the high-achieving J.D.s who wind up displaced are well-placed to (1) get Ph.D.s of their own or (2) go back into law.
  • Cut legal education to two years (or fewer); bring back the apprenticeship. It may be the effect of living in Britain, but the idea of less "education" and more lower-paid "on-the-job training" appeals to me at this point. It allows for a period of training that does not have to be subsidized by clients. And the addition of a few years of training (think like a medical residency) would raise the perceived barriers to entry to the profession. Of course, I say this as someone who got to jump into a biglaw job out of law school during a boom period, so salt this suggestion to your taste.

Short-term, it’s easy for us all to point fingers. But longer term, finding scapegoats doesn’t help nearly as much as finding solutions. (Plus, if one tries to look in an unbiased way, it’s hard to find anyone really to blame. This is one of those times that the problem is truly systemic.) There’s a lot about legal education to like; but there’s no question that the current model is simply not sustainable.