By June Carbone
In an article on the front page of the New York Times, David Segal writes that, surprise, surprise, law school faculties do not systematically train students for practice. The article is one of a series Segal has written about supposed law school excesses. Some describe genuinely questionable practices; this describes a complaint at least a century old. I’m sure Mr. Segal thinks of himself as a muckracker. What the article doesn’t acknowledge is that it also advances the agenda of the 1%.
Let me explain. The complaint about law school for over a century has been that they do not train students for practice. The only thing that is new today is that the most elite corporate clients are attempting to cut their legal bills by shifting the costs of the training to law schools – and ultimately therefore to the students. It is one thing to argue that the law schools of the future will need to pay more attention to practical training in order to compete with each other; this is almost certainly true. It is another thing to suggest that this is somehow a matter of consumer protection.
Legal education used to be relatively inexpensive, making law schools money makers for universities. Law schools have historically taught large numbers of students in large classes, with relatively few faculty and no need for expensive equipment such as science labs. The education focused on teaching students the cognitive skills prized in practice (how to “think like a lawyer”), and the large body of doctrine necessary to pass the bar exam. Both are only tangentially related to practice and the value law schools conferred on their students has never had much to do with practical skills. In California, where students from unaccredited law schools are allowed to take the bar exam, the unaccredited schools use faculty drawn entirely from practice and charge a fraction of the price of the accredited schools. Yet, I’ve never heard anyone suggest that they do a better job of training lawyers and almost every student who gets into an accredited school and can obtain a loan goes there.
The reason is that what drives much of legal education is the competition to supply lawyers for the top firms. The students’ starting salaries go up in accordance with the prestige of their law school and their class rank. The school’s prestige in turn depends on the quality of its students and faculty scholarship. Elite law firms have historically competed for the talented (the majority of the class at elite law schools and the top grads at other schools) and provided their own training to the best and the brightest. The other law school graduates obtained training on their own, though internships, pro bono work, contract positions that provide experience, or practicing on family and friends until they could establish firms of their own.
Insisting that law schools absorb the cost of the practical training that law firms used to provide will make law schools more expensive without necessarily improving the prospects of new lawyers. Clinical education started about forty years ago, but it was never intended to serve the interests of the elite. Foundation funding from the progressive left prompted the move. These clinics sought to expand the legal services available to the poor and to challenge the hierarchical and corporate orientation of traditional legal education. Over the last ten years, however, the purpose of clinics has changed. An empirical study at UCLA indicates that students today want experience in the field of their choice rather that the type of poverty law practice the original clinics favored. Elite law schools have expanded their clinical offerings to meet the consumer demand. Stanford Law School, for example, raised several million dollars for a new building and endowed clinical professorships. The stated purpose was to better prepare students for practice, but many suspected it was to better compete with Yale.
Law schools are in fact in the midst of an intense period of reform. Many schools have dealt with the pressure to produce more practice ready students by admitting more students with greater real world experience rather than recent college graduates. And while cost limits the number of clinical opportunities at non-elite schools, most schools have expanded their externship placements. Indeed, most students these days recognize that experience is essential to future job prospects and use law school and family contacts to make sure they have the right internships before they graduate. What has changed is that in an earlier era, most of these experiences were paid. Today, students subsidized by their parents or student loans compete for the unpaid internships they feel with best give them a leg up on the competition.
These changes reflect the growing inequality that continues to provide extraordinary payoffs for the elite few while raising the costs of legal education beyond the reach of much of the population. The education Mr. Segal describes in the article – learning to file the right merger document with the Secretary of State – may simultaneously be expensive to teach in a clinical setting that serves actual clients and of little use to an attorney who cannot remember the details a couple of months later. I met recently with an attorney asked to advise Harvard Law School’s curriculum reform efforts. He said that the lawyers told Harvard that what new graduates lacked was the ability to write. Yet, I suspect that the advice will fall on deaf ears unless and until Harvard decides that the effectiveness of its writing program will increase its ranking in US News. The result might be genuine improvement, but competitive advantage should not be mistaken for virtue.
Addendum: Most of the reactions to this article either involve a defense of law school hierarchies or a challenge to the relationship between legal education and elite firms. For a sampling, see http://www.legalethicsforum.com/blog/2011/11/more-on-the-ny-times-article.html
