Reflections on the "Crisis" in the Business of Legal Education and the Problem of the Conventional "Return to Eden" Strategy

 (Pix (c) Larry Catá Backer 2015)

The Association of American Law Schools (AALS) has just recently concluded its 2015 Annual Meeting. Like other field specific organization functions, the annual meeting provides a space where law faculty can meet to discuss interesting developments in law, showcase new scholarly work, and network.  And this year was no different in that respect.

But there was a difference.  For the last several years, the business of legal education has been under attack. (See here, here and here). And a weak economy, high entry costs and lower economic prospects has combined to substantially reduce law school applicants even as the number of law schools have expanded, the costs of operating law schools has increased as well. (See eg, here, and here).)   In the face of this criticism, there has been some push back as the legal academy seeks to defend its practices and culture--and to convince stakeholders of the value of the product it sells.  (See eg here and here).  But principal stakeholders have become more aggressive in seeking changes in the structure of legal education to suit their own tastes, including the American Bar Association (See, e.g., here), and senior judges (see e.g. here).

This post considers the consequences of the current challenges facinmg law schools, especially those operating within public universities.  It suggests the difficulties of the usual response to such market stress--contraction and a vain effort to recreate a past without stress (the "return to Eden" strategy) and suggest the contours of another and perhaps healthier approach.

The reaction among law schools--faculties, administrators and university officials--has been predictable, conventional and to some extent unhelpful.  For faculty, the assault on law schools translates into a tighter market for teachers.  That tighter market then suggests that the safest course of action is to pull back. Contraction and a pathetic effort to retreat back to the forms of legal education of the 1980s (the last magical period of law school expansion) are grounded in the premise that mimicking the behaviors of the last expansion period will somehow satisfy critics and stabilize revenues and on the related premise that such reactionary contraction is somehow the least risky approach to the economic and cultural problems now facing the business of legal education.  

Where faculty had been eager to explore new areas of legal education, and craft new fields, sometimes quite specific, methodological or theoretical, as a basis for grounding students in developing aspects of law, faculty now appeared more eager to scramble back to the basics.  Teaching traditional bread and butter courses, well institutionalized in the law school curriculum of a generation ago appeared to be the safest bet against downsizing.  As a consequences there has been a sometimes substantial pressure on schools to trim the new and experimental course offerings developed over the last 20 years.  

For law school administrators, this provides, ironically enough, a useful tool for trimming faculty.  By retreating into the core courses of the 1980s, it is possible to reduce the size of a faculty (no need for, as one administrator is fond of calling it, "fluff" courses (theory, methodology, transnational or interdisciplinary courses mostly)). Ironically, then, faculty behaviors in the face of stress makes possible the realization of their collective fears--and collective behaviors grounded in retreat to some sort of "safe" pattern of behaviors only produces the contraction that faculty fear most. Administrators have also been tempted by embracing a made to market education system in which law schools become little more than the ministerial representatives of influential law business players who can now demand the production of made to order factors to suit their labor market needs. That approach is tempting but also unbalances the relationship between law school and labor market consumers.  It also permits labor consumers--bench and bar, to shift training costs, traditionally borne by law firms and judges, back to law schools, who now tend to be tasked with the job of manufacturing "experience" for the benefit of labor markets in the form of "experiential" and related learning systems that have become the rage in legal education. More importantly, this approach permits faculty to change their behaviors very little in the face of crisis.

For university administrators, already relatively risk averse (see here) this turn in legal education might appear welcome.  Especially for the unimaginative and risk averse administrator unwilling to spend a lot of time thinking through the business of education and willing to either buy expertise in the form of consultants packaged knowledge or to accept without much question the blandishments of equally risk averse deans, contraction seems like a safe course.  Businesses tend to contract (and then expand) as the normal course of their operations.  And the idea of getting back to basics, or of focusing on core competencies, or on returning to basic values and operations all sound like the kinds of things that it is easy for administrators to embrace without substantial risk. . . for their own careers. Since "everyone" contracts in time of stress, then it is safe to pursue that strategy mindlessly in the case of law schools in the face of the criticism and economic stresses that appear to be a medium term fact of life for the legal education business.

And that would be true, perhaps, except that the world has changed substantially since the time of the last contraction.  What appears to be without much risk--a return to good old fashioned values, or basics, or core competencies or the like --is actually far riskier in an environment in which much of what would be left after a contraction would be irrelevant for the daily lives of lawyers and the clients they serve. Law itself has morphed, but more important, the world has become far more interconnected and the range of law school education "products" substantially more expanded. The markets that law schools serve extend far beyond the students seeking a J.D.  It includes post J.D. students and substantial connections with students beyond the United States seeking a legal education.  The law school's academic products are no longer limited to or exclusively centered on the production of J.D. students ready for state bar exams.  It includes a substantial amount of continuing education, of packaging education modules for specific stakeholders, of providing experiences and knowledge that students may find useful in a world in which markets and professional proficiency may vary widely.  Research, and even interventions in live legal controversies are no longer just local--or even narrowly legal in the sense of that term in the 1980s.  Experiential learning can involve international litigation as well as local--and to the benefit of students.  (See, e.g., here).

I believe it is possible to understand the factors shaping the business of legal education, and with that in mind, to move aggressively to embrace the new realities of the business of legal education while avoiding the dangerous (though alluring) tenancies toward contraction and reaction in the face of economic and industry stress. It is even possible to get small groups of faculty to see the possibilities.

Consider in this regard the Report of a hypothetical Faculty Committee to consider the market and market responses of law schools seeking to become or retain a status as  a market leader in legal education.  It reflects the sensibilities and challenges of a public university--those facing privates are a little different. It is offered as an alternative to the contraction and regression approach that all too often is embraced without much reflection, as risk less, though with the likelihood that it will increase risk to law school stakeholders.  This hypothetical Report offers a competing vision, one that remains fairly conservative, but avoids contraction as the "go to" strategy for law schools facing the challenges of a changing industry, while expanding its markets to increase rather than merely seek to preserve a part of  thie rI would be interested in reactions.

REPORT

X STATE LAW SCHOOL COMMITTEE

I.              Introduction

In thinking about the potential “relevance” and “reach” of X State Law, a majority of Committee members wanted to present the following vision to spark discussion; this is followed by a short set of recommendations.  The body of the report then includes draft definitions of relevance and reach; critical framing questions; and topical areas for consideration.  Each topical area includes potential issues; more recommendations for action; and areas of opportunities to explore.  Additional information is also included in the appendices.

The goal of this report is to start a conversation, elicit feedback, and help inform the strategic plan.  This represents a consensus among most of the members of the Committee and its drafting is substantially a product of the members that formed that consensus group.  

II.            X State Law: Vision for 2020

Relevance and reach both are achieved by engagement.  The traditional core law school functions of teaching and scholarship are bridged and complemented by an institutional culture that encourages faculty and program engagement: across disciplines; with our students; with faculty, academic and administrative departments of the University, other institutions of higher learning, the community, the Commonwealth, the media, and beyond.  Engaged scholarship and experiential programs are valued for providing students unique learning opportunities and the cascade of tangible benefits that stem therefrom.  Engagement distinguishes our students and our school, and gives us confidence of purpose.  By 2020, engagement is our ethos.

By 2020, the J.D. program remains the core of X State Law.  Our J.D. students will be able to work with professors here locally in the X State Law Building and on the main University Park campus to engage in the highest level scholarship.  They will be embedded in programs remotely as well, learning with peers at sister institutions and programs abroad through online engagement and distance learning.  Our J.D. students will also learn by doing:  experiential learning will include access to cutting edge internships, externships, and hands on practicums.  This work will take advantage of our geographic proximity to New York, Washington DC, Philadelphia, and Pittsburgh, as well as the research and outreach that is conducted by world renowned academic researchers on the X State Campus. Our students will travel, sometimes for a week or two, sometimes for a semester, to experience law and policy at work.

By 2020, X State Law will have a truly international set of connections.  Our LL.M. program will be recognized worldwide for the significance and quality of its program and the exposure to U.S. law.  Our S.J.D. program will attract the best students working on cutting edge research.  All of our students will work together to understand what it is to live and work in a global community, where global changes impact local decisions, and local decisions have global effects.  All of these programs will integrate X State Law with X State as a whole.  Our students will have access to the brightest in legal faculty, along with access to learning qualitative and quantitative methods and the direct topical area of expertise that they might need. 

By 2020, X State Law will have expanded the relevance and reach beyond international students.  Both the LL.M. and S.J.D. programs will include students from U.S. law schools.  In addition, the law school will have established robust programs in legal studies for both U.S. and international non-J.D. students.  As the relevance of law and legal studies becomes an increasingly important element for employment in non-lawyer licensed related fields that X State Law ought to expand its offerings to take advantage of those markets at the graduate level.

By 2020, X State Law will have a variety of multi-disciplinary programs and connections that set us apart.  These programs will provide a way to integrate the patent concerns of engineers, the security and privacy concerns of the College of Y the environmental law and policy important to environmental and natural resource management.  X State Law will also have tightened it relationship with relevant related faculties especially those involved in cross border transactions to offer the possibility of integrated courses of study. Our students and faculty alike will be able to participate in innovative and integrated programs that combine cutting edge law and policy work with research and outreach underway on campus. This may involve building on what we have, such as our joint degree programs, or creating new programs from scratch.  

By 2020, X State Law will have explored and started to develop an undergraduate law program that also ties into other curricula on campus.  The opportunity created by such a program will tremendously increase multi- and cross-discipline possibilities and expertise at X State, will provide engagement opportunities, will attract prospective law students (both X State undergrads and students interested in particular specializations), and ensure that X State as a whole is known for its legal training program.  This will also help attract potential students from around the world and begin to train students on the importance of legal work in a global economy.  The undergraduate law department will also be a valuable revenue source.

By 2020, X State Law faculty will have established systematic and strategic partnerships from a local to a global level.  These will be across the X State campus, within the State, within the region, within the country, and across the world.  These partnerships and working relationships will foster strong programs of scholarship, partnership, and teaching that help support the programs listed above.  Our faculty will also be sought out as experts to help inform the public and the press, to present on critical topics, and to engage in teaching in the broader community through certificate programs and cutting edge programs accessible to practitioners.

III.          Recommendations

These are the top areas in which a majority of the Committee thinks we can expand our relevance and reach in the short term.  Additional detailed recommendations or opportunities to explore are in the body of the report. 

A.    X State already has phenomenal relevance and reach.  We need to be more pro-active and systematic in  

1.     Continuing to raise awareness that X State Law exists;

2.     Creating opportunities & incentives for our students and faculty to participate and provide impact and relevance for X State research;

3.     Taking advantage of both informal and formal opportunities such as co-hire positions, joint degrees, or new programs to build direct collaborations.

B.    We need to be pro-active and systematic in working with the broader “community” at the local, regional and national scale by

1.     Integrating into local bar activities, CLEs, trainings, and opportunities;

2.     Using our distance learning set up to ensure a regional reach by using existing programs like World on Trial or developing new content on critical topics; and

3.     Tapping into our proximity to major cities like D.C., New York, Philadelphia, etc.

C.     We also need to be more pro-active and systematic in developing and integrating our LL.M./S.J.D. programs while working with our existing international network, including the 15 schools we have direct agreements with and those in the World University Network.

D.    Finally, this Committee reviewed a significant number of critical issues. A majority of the Committee recommends the creation of a committee with specific task groups to further research issues, develop criteria to help identify priorities, and develop incentives. 

IV.          Committee Background:

The Dean's charge provided :

I’ve asked for this Committee because I believe we must think strategically about new ways we can increase our relevance and reach in areas that, while not new for us, may be underdeveloped.  While our traditional core functions of educating students and producing legal scholarship remain, changes in learning methods and the legal marketplace demand that we evaluate new opportunities for advancing legal education.   While there is value in the creative, ad hoc efforts of individuals, we can complement individual efforts with intentional collective planning as well.  My hope is that this committee will play a leading role in encouraging all of us to stretch our vision of what we can become over the next five years and beyond.

The following suggestions are offered to stimulate, not limit, imaginative thinking.   In many cases, the areas below, while listed discretely, are closely related to one another.

·  Ways to expand our reach by increasing collaborative partnerships and funding opportunities within the University

·  Ways to expand our reach in the on-line domain

·  Ways to expand our reach by offering continuing education and certificate programs

·  Ways to expand our reach, and build community support, by expanding our relevance

·  Ways to enable these efforts by organizing our internal resources and processes more effectively and efficiently

·  Ways to expand our reach through partnerships with leading universities across the globe

V.            Scope of the Relevance and Reach Mission:  

As a Committee, we have been exploring what might be meant by “relevance” and “reach”.  We have also been asking about what we might be seeking as a law school: Students? Revenue? Reputation?  Rankings? To build a pipeline of students?  A majority of the Committee developed the following draft definitions, and also identified some critical questions and challenges that are important to help frame the discussion.

A.    Relevance: 

How do we as X State Law expand our relevance with cutting edge and important legal scholarship and well qualified and highly sought-after law school graduates? For faculty, this includes publications and collaboration with others.  For students, this includes what they learn in the classroom as well as with experiences like independent studies, externships, or other programs that help set our students apart.  There are also potential joint opportunities for faculty and students.  Because of the connection to X State as a whole, as well as the School of International Affairs, understanding how X State Law can be an integral part of a global and interconnected university, both in its teaching and research missions, is critical.

B.    Reach: 

How do we expand our “reach”?  In discussing what “reach” might mean, the Committee discussed the need to be able to “reach” audiences from a local to global level across a broad spectrum of topics, and leveraging connections for both faculty and students.  We also want to be sure we are reaching a broad spectrum of students who might be interested in X State Law.   We also discussed a number of ways to think about “reach”, including the following:

·      By geography:

o   Locally

o   Regionally

o   Nationally

o   Internationally

·      By topic (as identified by the Provost in X State’s strategic planning process):

o   Promoting Our Health

o   Stewarding Our Resources

o   Transforming Education

o   Building Our Digital Future

o   Valuing and Exploring Our Cultures

·      By potential connections: for example, with other departments across X State

·      For different types of audiences:  

o   Within the law school: J.D., LL.M., S.J.D. students

o   Within X State: undergraduate, graduate, online

o   In the broader “community:” examples may range from local attorneys to international contacts or international online students

C.     Framing Questions and Challenges:

The Dean asked the Committee “to stretch our vision of what we can become over the next five years and beyond.”  As the market for legal education and practice becomes increasingly global in nature, the Committee considered the impacts that these changes have upon the study and practice of law.  The Committee wrestled with the assumptions and values for what X State Law might look like in five years, or in twenty years.   In reality, the appearance of X State Law in the future will be shaped by the manner in which our law school responds to this changing environment for legal education, by action or inaction.  To appropriately define our relevance and reach as a law faculty, we first should strive to articulate a unified vision for X State Law in light of these market changes.  In articulating a vision, we are presented with two ends of a spectrum: focus solely on J.D. students or embrace the wide range of potential students in the global market for legal education. 

Many of us are products of a legal education system in which the J.D. program was at the core of – and effectively defined the entirety of – the teaching mission of a law school.  As such, we are familiar with the structure of a traditional law school, its strengths, and its limitations.  This style of traditional legal education is effective at training lawyers who will be employed within significant segments of the conventional labor market for attorneys, but it also can be described as rigid and risk-averse. The traditional model generally fails to benefit from 1) “global” opportunities, 2) cross-discipline opportunities, and 3) experiential opportunities.  Ironically, aversion to recognize and embrace changes in market demand (both in the market for highly-qualified law school applicants and in the job market for recent law school graduates) may pose one of the foremost risks to a law school. 

A law school that embraces the entirety of the global market for legal education will retain the J.D. program as one among many different programs designed to provide legal education to a broad range of students including undergraduate students, international lawyers, post-J.D. degrees, post-B.A. degrees for non-lawyers, and other non-degree programs for lawyers and non-lawyers.  While this type of legal education may offer the potential for tremendous opportunities to its students, it also poses a number of challenges for subscribing institutions.  These institutions must develop appropriate administrative frameworks to manage the variety of interrelated programs as well as navigate the implications of these varied programs upon existing accreditation processes.       

In reviewing this spectrum, a majority of the Committee embraced the idea that the proper place for X State Law is somewhere between.