Here are a few ideas for how law schools that are not in the top ten (or not in the fifteen that are in the top ten) might respond to the structural forces bearing down on legal education. For those who haven’t been keeping up, the structural forces include: defunding of public education; rising tuition (in part due to defunding of public education but also for other reasons); increasing student debt loads; diminishing job opportunities; diminishing pay; and changes to the format and delivery of legal services. These forces have unearthed some longstanding shortcomings in legal education, and also have brought new pressures to bear. When law schools, particularly public law schools, were cheap, students did not have to worry much about how their legal education was or was not serving them. They also did not have to worry much about landing a legal job. The credential was helpful for a variety of career paths, and most options remained open financially. Now, students have to think very seriously about whether to go to law school and incur significant debt, and therefore become channeled into narrower career options, if they have options at all.
The top 10 or so schools will likely be able to continue with a law school business-as-usual scenario, with the possible exception that they will be engaged in global competition for students and faculty. Otherwise, a few tweaks to financial aid and loan forgiveness and a few nods to improving the quality of the educational experience should do it for them. The schools in the lowest tier will likely face an equally foregone, though diametrically opposite, future. The pressure will be great to dramatically decrease faculty scholarship and emphasize skills training and bar prep approaches to teaching. Many schools will follow this vocational-technical route in order to remain cost efficient and therefore survive.
What about the schools in the middle? Can they, and should they, pay for faculty to write articles and books? Can they, and should they, continue to teach theory, jurisprudence, and critical approaches to law? Can they, and should they, pay for expensive in-house clinics where students can acquire skills in the context of intensive feedback accompanied by opportunities for critical reflection? Here is a short outline, a sketch really, of an argument in support of the answer “yes.” A significant caveat exists, however. It is this: yes, if at the same time these schools can increase the value of legal education by requiring higher quality teaching and in other ways demanding more of their faculty, without doing so in unimaginative ways that lead solely to a vo-tech model. Law teaching can continue to be one of the last great jobs, but only if faculty can respond constructively to the changes facing us and our students.
The Case for the Feisty Liberal Arts Law School, in Outline Form:
–Our society is riddled with law, and will continue to be so indefinitely.
–People, poor and rich, will always need excellent lawyers when things go wrong (divorce, death, catastrophic injury, foreclosure, injustice, etc.)
–The top ten schools cannot produce enough excellent lawyers for all of society.
–Excellent lawyers not only have the best skills, they understand how to dissect arguments and to cut through layers of obfuscation and preconception. They are, in other words, interpreters and translators.
–The ability to interpret and translate requires critical thinking skills and a deep understanding of the structures of language and argument.
–Excellent lawyers also know how to make their arguments resonate with deeply held beliefs.
–Knowledge of history, including legal and intellectual history, is necessary to speak in a register consonant with people’s deeply held beliefs.
–A legal liberal arts education, along the lines of what is available at all good law schools, provides access to professors (both clinical and non-clinical) who can teach critical thinking, legal and intellectual history, and legal theory, all of which are necessary to produce excellent lawyers as described above.
–Professors inclined to teach in these ways can add knowledge to the world (through their scholarship), that most judges, lawyers, and law-makers cannot. Academics can take the time to study a field of law in its historical sweep. They can dissect the moves and unearth the assumptions in a line of legal argument that have, sometimes dangerously, been left unexamined. Not all of what academics do will illuminate or enlighten, but much of it will. And if the machinery of law grinds along, with no one minding the gaps, all the skills in the world will do nothing for those who might be crushed in its wake.