By Dale Whitman

In many ways, American legal education is better off today than at any time in its history. There are more law schools and more students. There are more faculty members, and the faculty are better qualified. More schools have functional and attractive physical plants. Faculty-student ratios are better.

Because we have larger applicant pools, we can be more selective in admissions than in the past. Hence, our students are generally brighter and more able than in the past. Of course, the current economic recession is entitled to the credit (or blame) for some of this surplus of well-prepared students, and it is a virtual certainty that it will not last. But even when the economic climate improves, it is likely that we will continue to experience a reasonably strong and consistent demand for legal education.

There has been a change, as well, in the dimensions of legal scholarship. In the past, the elite and mid-range law schools were consistently staffed by faculty committed to research and publication, but many lower-ranked law schools were not. Today the contrary is true. At every tier in the supposed hierarchy of law schools, at least the younger faculty, and often the faculty at large, are strongly dedicated to scholarship.

This change is a result of several factors, one of which has been the AALS?s consistent encouragement toward scholarship in its role as the ?learned society? of legal education. Another factor is the remarkable quality of those who are seeking faculty positions, making it relatively easy for all law schools to hire people with strong scholarly potential.

But perhaps the largest impetus toward greater scholarship has come from the focus of so many law schools on their position in the rankings published by U.S. News and World Report. Those rankings are heavily dependent on reputation, as measured by U.S. News, and it is widely believed that publication (and the perception of publication) is an important key in improving a school?s reputational index. Hence, virtually all law schools now provide incentives and encouragement for their faculty to publish.

They also produce what has become a blizzard of brochures and leaflets describing the publications of their faculties, which in turn are mailed to all of the other law schools. Two or three of these seem to arrive in my mail every week. Whether this public relations effort is a boon (except to the designers and printers of the brochures) is doubtful; perhaps the reputational impact of each school?s brochure is cancelled by all of the others, leaving everyone roughly where they were before! But the brochures do have a certain ?feel good? effect, and they remind faculty members that research and publication are rewarded and valued. Surely this cannot be a bad thing.

Despite the improvements in our culture and working environment mentioned above, our horizon is not quite free of clouds. One of them, presently impacting publically-supported law schools, is the decline in state revenues and the resultant reduction in state support for higher education. This phenomenon is widespread; few states have escaped it, although its effects have been more extreme in some than others. This too will pass, but over time repeated episodes like this tend to make state universities lag behind their private sisters and brethren, at least in funding, and ultimately in all the things that money can buy. The only apparent remedy is increasing private support for the state schools, and most of them are working aggressively toward that end.

The Cost of Legal Education. Private law schools have a particular challenge in keeping their students? costs and debt at reasonable levels. Most private schools are now charging tuition and fees that aggregate well above $25,000 per year. It is not at all unusual for private law school students to graduate with debt loads in excess of $100,000. Moreover, the students with the heaviest debt are commonly those who did not qualify for scholarship assistance, which is now widely awarded on the basis of academic qualifications. Hence, those who are lower in class rank usually have heavier debt, despite the fact that they are the very students who will have difficulty landing elite, high-paying jobs that will help them retire that debt. Even students at publically-supported law schools now often graduate with huge bills to pay.

Heavy debt loads can have a serious adverse impact. At a minimum, they tend to constrain the career choices of graduates, who may feel that they must opt for the best-paying jobs in order to afford to service their debt. Public sector positions simply don?t pay enough to warrant serious consideration. Graduates who cannot get high-paying jobs may feel more severe effects; they may be forced to postpone home purchases and may otherwise feel real economic deprivation. After all, a debt of $100,000 is the equivalent of the typical home mortgage loan in many areas of the nation.

There is no simple solution to this problem. Robert Hirshon, Immediate Past President of the American Bar Association, has created a Commission on Loan Repayment and Forgiveness that includes several well-informed law faculty members. The Commission is looking at ways of educating and warning prospective law schools of the dangers of excessive student debt. It may also be able to identify some sources of additional funding to alleviate the problems of high-debt students. Some law schools already have debt forgiveness programs for graduates who enter public service. But the mathematics of the situation are overwhelming, and it is unlikely that any funding source or collection of sources will make a sizeable dent. This is a problem that deserves our best thinking.

Clinics for the Rest of Us. We have come a long way from the 1960s and the creation, with funding by the Ford Foundation, of the Council on Legal Education for Professional Responsibility (CLEPR), which funded most of our earliest law school clinics. Today clinical education is widely respected and acknowledged as essential. We have expanded far beyond litigation-oriented clinical experiences to encompass negotiation, client counseling, and a wide variety non-litigatory dispute resolution methods. The result, without doubt, is that our students are far better equipped to practice law upon graduation than they were twenty or thirty years ago.

We have not, however, made equivalent progress in the training of transaction lawyers. I refer to those who will negotiate contracts, form business entities, counsel on tax liability, arrange securities registrations, and do the other legal tasks on which individuals and businesses, large and small, rely. It is quite challenging to devise curricular opportunities that will train students in these skills. There is, of course, some overlap with the litigation and dispute-resolution skills we cover in most of our clinics, but there are also major differences. The opportunity to ?kill two birds with one stone? by training students while at the same time providing legal services to the needy does not work well with transaction-oriented skills; they are simply not the skills that most of the needy need.

Moreover, many of the faculty members we hire are not well-equipped to teach in these areas. We have increasingly hired from the ranks of federal judicial clerks ? an exceptionally bright group of people, without doubt, but people who have little experience in law practice and whose experience has nearly all been litigation-oriented. The elite law schools, and increasingly the less elite schools, have also tended to hire in recent years people holding Ph.D degrees in other academic areas, such as history, economics, sociology, or psychology.

There is no question that the skills gained in a Ph.D program can be immensely useful to a law professor. One of my younger colleagues, for example, recently published a superb article analyzing the widely-made claim that punitive damage awards are out of control. Using the skills developed in her Ph.D. experience in psychology, she adroitly demolished that claim. Few academics without advanced statistical training could have done the work she did so well.

But we need to exercise caution in our hiring. The colleagues we add to our faculties, whether or not they have advanced degrees in other fields, must be people who have a genuine commitment to both a critical analysis of legal issues and to the training of those who enter the legal profession. Law schools are different from ?academic? departments of universities; they are obligated to give first priority to professional training. Hiring must be done on the basis of the needs of our students and not our desire to impress colleagues in other university departments.

Our hiring deficiencies are most apparent with respect to the training of transaction lawyers. My own field, which is real estate transactions, has suffered considerably from this neglect; there are now a number of law schools that literally have no full-time faculty qualified and willing to teach the topic. Other transaction-related specialties have similarly diminished in the academy, although they remain of great importance in law practice.

Adjunct faculty may occasionally fill a temporary gap or provide a highly-specialized advanced course, but they are no substitute for full-time faculty in these fields. Effective teaching of transaction-oriented courses virtually demands full-time teachers who have had (or are willing to gain) some experience in that type of practice, just as does the teaching of litigation-related skills. Neither a federal clerkship nor an advanced degree in another field is a very adequate substitute.

Moreover, those who teach transaction-related courses must stay ?transactionally current? in order to do a good job in the classroom and clinic. This may mean that they need to engage in a modest amount of practice, or at least to say in close communication with practitioners ? neither of which is looked upon with much favor in the academy these days. It is not easy to balance this need with the demands of teaching, research, and committee work, but unless that balance is achieved, teachers of transaction-related courses can grow obsolete in their knowledge of their fields quite quickly.

We need to begin giving serious thought to bringing to our students clinical and simulated clinical experiences in transaction lawyering that will approximate the first-rate quality and availability of our litigation-oriented clinics. And we need to adjust our hiring policies accordingly.

* This article appeared in the November 2002 AALS Newsletter.