Although a storm of criticism surrounds contemporary legal education, a key group in developing accreditation standards recently responded with welcome caution. The Standards Review Committee of the American Bar Association’s Section of Legal Education and Admissions to the Bar voted on February 7 to recommend only three relatively modest changes to ABA standards. The committee took no action on what is likely the most contentious issue the section faces—whether to accredit law schools that do not have a tenure system for faculty.
Just two weeks earlier, an ABA-wide Task Force on the Future of Legal Education recommended proceeding with “urgency” on a far more ambitious set of changes. It suggested that the ABA “eliminate or substantially moderate” a host of longstanding accreditation requirements, including the requirement for faculty tenure. The tenure issue will no doubt remain hot. The Legal Education Section’s Council—its leadership body—last summer solicited comments on several proposals for amending standards, including the elimination of tenure. The council could decide to revisit the issue at its mid-March meeting, which starts on Friday.
The immediate crisis facing law schools is a drop-off in applications. Applications fell last year to a 30-year low. A weak job market, high tuition, and a tsunami of bad publicity are likely causes. At the same time, many Americans lack affordable access to legal services. Getting rid of tenure, however, would not solve these problems—nor would allowing law schools to create a supposedly more practical curriculum taught by larger numbers of lower-salaried faculty members who are not expected to do research.
Most law schools already employ not only tenure-track faculty who, as a group, are often involved in both classroom and clinical courses, but also cohorts of non-tenure-track faculty who are skilled lawyers focusing on practical skills. These practice-oriented instructors typically earn a form of contractual job security that closely resembles tenure, but they are not required to produce scholarly output and are usually paid less than research faculty. Proposals to eliminate tenure or its equivalent would allow and perhaps encourage law schools to focus their hiring predominantly, if not exclusively, on such lower-salaried, practice-oriented instructors. Candidates would be selected without regard to their interest in or demonstrated capacity to produce scholarly research. The pattern would move law schools toward a less academic, more vocational model.
What such proposals ignore, however, is that the most important, most enduring, and most practical skills law school hones are critical thought, effective communication, and a broad familiarity with law’s conceptual frameworks, distinctive vocabulary, and advocacy techniques. Scholars steeped in these skills deliver not just the public value of their research, but also the value their students gain in the classroom from learning these skills from experts.
The ABA task force does not deny this. It bases its argument, however, for “greater heterogeneity in law schools” and increased emphasis on more practice-related curricula chiefly on cost and what it anticipates is law’s coming deprofessionalization. Many law students, it implies, no longer need to be trained as broad-gauged legal professionals expected to function as community leaders; it is enough that they be trained “to provide limited law-related services without the oversight of a lawyer.” Law schools, through the elimination of tenure, among other reforms, could offer students a lower-cost, more-practice-centered curriculum.
There are four clear problems, however, linking this bleak forecast for the legal profession with recommendations to abolish tenure or facilitate law schools’ move to lower-cost “practice-ready training.”
First, the argument imagines that excellent teaching could be maintained even when compensation for faculty members goes down. There is no evidence for this. You don’t hear free-market advocates arguing in other contexts—for corporate executives, for example—that people will perform as well if paid less.
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.
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.
Finally, the goals of cost reduction and better professional preparedness may well be at odds. Higher-quality, more-client-centered, more-personalized education is likely to be more costly than conventional classroom education. Over the last 50 years, movements for clinical legal education, simulated practice courses, externships, and problem-solving pedagogy have already provided law students with a wide range of opportunities for what is now called “experiential learning.” But not all experiential learning is created equal, and the best experiential learning is expensive.
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.
Lacking such a formal apprenticeship program, I still hope and expect law faculties to continue to be both ambitious and imaginative in improving law-school curricula. Tenure not only protects academic freedom. It enables faculty members to collectively pursue a balanced approach to serving both the needs of the immediate legal market and the long-term values of the legal profession and the larger society it serves. That is the true reform spirit.
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.
Peter M. Shane is a professor of law at Ohio State University.