Monday, December 05, 2011

The Indebted Lawyer

Brian Tamanaha

Bruce Ackerman bemoans that "even in elite schools, it is astonishingly easy for law students to lose themselves in clinical work and avoid the sustained, and multi-disciplinary, course-work that should be required for the leaders of the next generation." He suggests that those who advocate basic lawyer training are succumbing to the anti-intellectual tenor of the age.

As an outspoken critic of contemporary legal academia, I feel compelled to explain that my position is not anti-intellectual. What I am arguing for is greater differentiation in legal education.

Not all law students are "leaders of the next generation." The vast majority of lawyers do basic yet essential work that helps people and businesses carry on with the tasks of life. And while it is true that the lawyer-statesman ideal has taken a hit, as Kronman argued in The Lost Lawyer, it was always an ideal drawn by the elite of the bar, not a description of most lawyers.

A tragic aspect of the present debate is that it has been going on for over a century in exactly the same terms, with elite law schools asserting that lawyers should be trained as the future leaders of society, and opponents arguing that law schools should be allowed to provide basic lawyer training at a reasonable cost. Here is a delegate opposing the proposed three year requirement at the inaugural AALS meeting in 1900:
I do not care at this time to go into the question as to whether a three-year or a two-year course is the more desirable. I do want to say that there is a very great difference of opinion among educators on that question; that in the opinion of many educators of wide experience two years spent at a law school and one year in an office is the best education a student can have...I am not arguing against the existence of those great schools which with their endowments and able faculties, large attendance of students with ample means, may think it is desirable to have three-year courses. But it is an entirely different question whether you shall say that every law school ought to have a three-year course and that the student cannot have the benefit of the two-year course if he desires.
His plea proved unavailing. Elite law schools successfully argued that law schools are not trade schools but academic institutions that train the future leaders of society. The three year standard was imposed on all, first by AALS in 1900, then two decades later by the ABA at the urging of AALS. On both occasions, opponents objected that the uniform academic model of law school was unnecessary for most lawyers and too expensive, and would keep out immigrants and poor people from pursuing legal careers.

Fast forward a hundred years: Today annual tuition at private law schools is between $30,000 and $50,000. The total cost of a legal education (including expenses) for many students exceeds $150,000. Average law school debt is approaching $100,000. The median salary for 2010 graduates who landed lawyer jobs was $63,000, which is not enough to manage the monthly payments on $100,000 debt. Many graduates are not getting legal jobs. Middle class and poor people are foregoing law school in increasing numbers because it costs too much.

When Lost Lawyer was published 15 years ago Kronman's battle to preserve the professional ideal was already largely lost--to our detriment. But at least legal education was still affordable then. The current generation has a different battle, and the battleground is not the legal profession but the halls of academia. The enormous economic barrier to a legal career that now exists is a disaster for society as well as for the profession.

Some of the recent criticism of law schools, including the article in the Times, has had anti-intellectual overtones. That is unfortunate. But it is not anti-intellectual to criticize legal education for being too costly for 45,000 law students (annually) nationwide because ABA/AALS accreditation standards impose the same "research university" model on all law schools. (As the author of six books in legal theory/law and society, it goes without saying that I value intellectual pursuits.)

Legal academics have responded to recent criticisms defensively or apologetically or defiantly. That is all beside the point. We should instead acknowledge that there is a serious problem with the economic structure of legal education and look for ways to solve it.


Perhaps the greatest lawyer-statesman in U.S. history was Abraham Lincoln, and his training was entirely “clinical.” Ackerman is simply wrong to suggest that there is a contradiction between clinical education and future leadership. Multi-disciplinary coursework is not the only site of intellectual discourse in law schools.

Steven Lubet
Northwestern University School of Law

(posted by Tamanaha at Lubet's request)

I was thinking of reading Kronman's "The Lost Lawyer" but perhaps more interesting might be Kronman's more recent (2007) book "Education's End: Why Our Colleges and Universities Have Given up on the Meaning of Life" which may address student loans and their impact. So perhaps all of higher education should be addressed and not just law schools since most law schools require an undergraduate degree. I would hope that in addressing the issues faculties would pull together and not circle the wagons to protect their interests.

I think Brian is right to keep the focus on law school tuition. While members of the legal academy may differ on whether law schools should be engaged in more or less skill training, the reality is that law school tuition is simply much too high given the employment prospects of today's graduates. I don't think that there are many people involved in legal education who would deny this, although I expect that there are widely divergent views on how costs can be controlled.

I am wondering why more has not been made of the fact that some (many?) universities use law school tuition dollars to partially fund less lucrative programs of study. This practice was troublesome enough during boom times, but in the current economy, it seems highly unjust for law students to be essentially subsidizing their peers in other programs. If law schools could keep a greater percentage of their revenues, my guess is that some would be inclined to institute tuition freezes.

Right now the JD is in this awkward ‘I’m not a master’s, not yet a doctorate’ phase. As such I suggest splitting the JD into two!

First, there should be a two-year master's of law degree which offers strictly practical and bar prep training. This would focus on filing motions, document review, and everyday lawyerly things. There would be different concentrations available: family law, IP, trial advocacy, etc.

Next, there should be a traditional academic doctorate which focuses on things such as legal philosophy, jurisprudential theory, and the like. This would be more like a traditional PhD where students take highly academic coursework in pursuit of a final thesis.

I think this structure would decrease the cost of legal education and therefore of legal services: many of the day-to-day tasks would get taught in the two-year master’s program. Since the program is shorter, legal education costs would drop. Those schools and students who wish to concentrate on jurisprudence and legal philosophy are better off in the doctorate track anyway. There they can concentrate on publication and attend conferences like other academic fields.


Perhaps you've addressed this elsewhere, but I'm wondering what your position is on abolishing ABA accreditation requirements, as Sandy suggests. This would certainly bring down the cost of legal education.

I don't think it's correct to say that eliminating accreditation would, by itself, drive down the cost. The cost is driven by demand; as long as students are willing to pay the high fees, the schools are in a seller's market and will simply pocket the difference. Only if demand drops, or if supply increases substantially -- a possible, but not certain consequence of dropping accreditation -- will the savings be passed on to students.

I was intrigued by the National Lawyer (or, whatever magazine it was) article talking about apprenticeships as a path to becoming a lawyer. I wonder whether the system could be revived if we offered a one-year MA in law (essentially the first year curriculum, with some nods toward problem solving and the administrative state), whose graduates went on to apprentice for a year or two (or three) before they sat for the bar. It might mean changing the content of the bar a bit. But that wouldn't be all bad. And then I guess an interesting question would be who would offer these Master's degrees. Top tier law schools? Or maybe the lower tiered schools that Brian suggests should be operating on different models than Harvard and Stanford do.

I would propose an alternative means of reducing the cost of a law school education on the front end - either reduce the requirement to enter law school to a AA degree or better yet make law a five year undergraduate degree.

I do not see the necessity of transforming law school into either a practical or a theoretical education. You need to know both the theory and the mechanical application to practice law. Three years is more than enough to do both. But this will take a faculty with experience in the actual practice of law, rather than taking the route directly from law school with maybe a detour as a court clerk.

The English manage to get by with four years of post-secondary education and an apprenticeship.

Are they lacking in lawyer-statesmen?

This is all very interesting.

I don't doubt that the training and education of statesmen is very important. And I don't doubt that having at least some statesmen know the law is very important.

But since a lawyer who becomes a statesman is very rare indeed (even at the very top of profession), I think this is the wrong focus for law school. The entire curriculum should not be driven by the needs of a very small number.

Maybe what we should do for the minority who have a desire (and any realistic prospect for employment in such capacity) for training to be statesmen-lawyers is specific programs for that purpose. For example, a joint program developed between a law school and a school of government/public policy may make a lot of sense.

I just don't think that very many lawyers, even at elite schools, are going to be statesmen. So, I am not sure to what extent that education should be geared in that direction.

I will say this. I think a lot of law professors, especially elite law professors at elite law schools, themselves desire to be among this elite class of policymakers. I think they are teaching students what they themselves would like to learn.

The question is this. What does this have to do with passing the bar and practicing law serving ordinary clients? Most lawyers solve ordinary problems for ordinary people. It is not clear to me that an education fit for a future statesman is really necessary for ordinary everyday lawyers.

What are we doing to educate tomorrow's consigliori?

In other words, if we're seriously going to indulge in lofty talk about leaders and statesman, it seems only fair to mention certain other things lawyers do.

I am a recent law grad, who divides time between searching for a full-time job and trudging through a part-time document review job, not earning enough to even cover student loan payments. I went to law school for the intellectual challenge, which I received, and to assist my career, which hasn't quite happened. I graduated from law school far more able to discuss at length constitutional theory and abstract notions of intellectual property than able to file a complaint or write a will or form a corporation. I took clinical training, but mostly learned customer skills (which are important) but not much in the way of practical, day to day lawyering skills. And being mostly unemployed, I'm not sure how I'm going to get them. I'm proud of the intellectual, academic work I did; I just wish that I knew how to be an employable lawyer!!!

To follow up a thought on my previous comment, I feel far more able to "be a leader" than able to demonstrate my ability to perform basic legal tasks expected of junior associates--at least on my resume. And in the current hiring climate, it seems unlikely that I'll have a chance to demonstrate those abilities. I'm

Good post! I was actually doing research online on Intellectual Property Law when I came across your very informative blog.

Good response - Bruce Ackerman is on the wrong side of the argument (which at this point you know must be a familiar position).

We do indeed need product differentiation in the market for legal education.

Here is small part of my response to the NYT, etc:

"Lets just get this out the way right now – there is less humanities in law’s future. I have nothing against the humanities but this is no longer a humanities age.

It is an age of technology.

Law school needs to transition from its liberal arts predisposition to a polytechnic research and teaching operation.

From both a scholarship and training perspective, it is time to get serious about science, computation, data analytics and technology."

Dear Bruce,
There is a way forward here but it aint in the direction of what you are selling ...

A MIT School of Law (and its students) would do just fine ... you know when it comes to "actually doing sustained, and multi-disciplinary work."

Daniel Martin Katz
East Lansing, MI
(the Paris of Mid-Michigan)

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