By Deborah L. Rhode
(Editor’s note: The following is President Rhode’s speech before the AALS House of Representatives at the Annual Meeting in January.)
Members of the House of Representatives, colleagues, friends: it is a great honor to serve as president of an Association that, for almost a century, has been the national voice and collective conscience of American legal education. The commitments of this organization — to academic freedom, excellence, diversity, and social justice — are central to our lives as educators. I feel privileged to share in their pursuit and to have the support, wisdom, and example of so many partners in that effort.
Leadership of the AALS is a collective enterprise and I am blessed to have guidance from a superb Executive Committee and AALS staff. My debts are substantial, and identifying all of them individually would occupy the entire session. I will limit myself to singling out the Director, Carl Monk, the Deputy Director, Bari Burke, the Associate Director, Jane La Barbera, and my predecessors, Judith Wegner and John Sexton. Their unequaled talents have immeasurably enriched this Association and my own efforts in its behalf. I also owe a special personal debt to Herma Hill Kay, who first lured me onto the Executive Committee and who has inspired an entire generation of legal educators by her work as AALS President, pathbreaking scholar, and personal mentor.
Finally, on behalf of the entire Association, I wish to acknowledge the invaluable contributions of time and talent by AALS committee members, chairs, and section leaders. These contributions often come at a considerable personal price from people who somehow make space in already overcommitted schedules. I am honored to be part of this collective enterprise.
It is customary for an incoming President to take this opportunity to express not only gratitude but comments on the mission that we share. I wish to talk with you today about the professional responsibility of professional schools, which will be the theme of next year’s meeting. I approach the subject with considerable wariness, having spent much of my scholarly life mired in platitudes about professionalism. This subject’s anesthetizing effect at ceremonial occasions is much like the speeches of Warren Harding. His efforts, as one historian described them, resembled "an army of pompous phrases moving over the landscape in search of an idea. Sometimes these meandering words would actually capture a straggling thought and bear it triumphantly as a prisoner in their midst until it died of servitude and overwork."
So too, the American bar’s recent onslaught of professionalism themes has led many long-suffering audiences to join Monroe Freedman’s call for a "professionalism nonproliferation treaty." No more soggy lamentations about lapsed virtues and hypothesized happier eras when law was a noble calling, not a commodity marketed like bathroom cleansers. Yet while I want to avoid what has been rightly called the golden age of legal nostalgia, I nonetheless believe that there is some value in reminding ourselves about values.
This is perhaps an occupational hazard of a professor of ethics, but it is also a conviction widely shared. Underlying the current professionalism crusade is pervasive discontent with legal practice, both within and outside the bar. According to recent national polls, only about a fifth of Americans feel that the phrases "honest and ethical" or "caring and compassionate" describe lawyers. Over three-quarters of survey participants believe that law is the least affordable profession. And in comparative ratings of integrity, the bar is close to the bottom; we edge out used car salesmen and advertising executives, but just barely. Discontent is also widespread within the profession. A majority of lawyers report that they would choose another career if they could, and three-quarters would not want their children to become lawyers.
Law professors are, of course, mercifully insulated from much of this. As emigres from the world of full-time practice, we can readily — often too readily — distance ourselves from professionalism problems. We can critique but need not confront the adversarial abuses, sweatshop hours, and glass ceilings that practitioners report. We also can tune out consumers’ complaints of overcharging, neglect, and inaccessibility. Seldom do we personally bump up against a shameful irony: that a nation with the world’s highest concentration of lawyers meets less than a fifth of the legal needs of its low income populations. These professionalism issues seldom receive systematic attention in today’s curricula. Rather, the vast majority of law schools relegate almost all the discussion to a single required course; the rest of the faculty can treat professional responsibility as someone else’s responsibility.
One of the most important functions of the Association of American Law Schools is to call these larger problems to our attention. Occasions like this invite us to rethink our own obligations in a profession facing difficult questions of legal ethics and social injustice.
At their most basic level, these obligations demand an educational structure that can effectively meet the nation’s legal needs. From this central mission follow certain more specific responsibilities that generally are uncontroversial in principle but frequently are contested in practice. The obligations that I wish to single out today involve legal ethics, public service, and diversity.
Ethics
In a recent keynote address on professional responsibility, Supreme Court Justice Ruth Bader Ginsburg described one student’s first encounter with legal ethics. The professor in a core first-year course was discussing a lawyer’s tactic that left the student "bothered and bewildered." "But what about ethics?," the student asked. "Ethics," the professor informed him frostily, "is taught in the second year."
That message describes the experience at most American law schools. The vast majority meet ABA accreditation requirements of professional responsibility instruction through a single mandatory course. Few institutions make systematic efforts to insure coverage of ethical issues throughout the curriculum and few casebooks include significant ethics material. The result, as I have argued at length on other occasions, is to marginalize professional responsibility and to undermine its most crucial message. Ethics is a central constituent of all legal practice, and needs to occupy an equally central place throughout the law school experience.
The importance of professional responsibility instruction should neither be overstated nor undervalued. Skeptics surely are right that much unethical behavior in legal practice is driven by situational pressures that classroom experiences are unlikely to counteract. But it does not follow, as some have claimed, that legal ethics, "like politeness on subways or fidelity in marriage," cannot be acquired in professional schools. In fact, psychological research finds that significant changes occur during early adulthood in our basic strategies for dealing with moral issues. Education can improve students’ skills in ethical analysis and their responses to the situational pressures or regulatory failures that underpin professionalism problems. Over a hundred studies evaluating ethics courses have found that well-designed curricula can significantly improve capacities for moral reasoning; other research consistently demonstrates that moral judgment has some effect on moral behavior. Most lawyers who have taken legal ethics courses have given them credit for helping to resolve ethical issues in practice and have favored maintaining or expanding ethics coverage. There is, in short, stronger evidence concerning the value of professional responsibility instruction than of most legal coursework.
Moreover, the failure to make ethical issues a central part of law school curricula sends a powerful message that no single required course can counteract. Every school in fact teaches ethics by the pervasive method—which is too often pervasive silence. That is not the legacy we should leave.
Public Service
Similar observations apply to pro bono and public service. The aspirational standard in the American Bar Association’s Model Rules of Professional Conduct calls on lawyers to provide 50 hours of unpaid work per year and to devote a substantial majority to persons of limited means. Despite some recent improvements, our profession remains a far distance from that goal. The best available surveys suggest that less than half of practicing lawyers provide any such pro bono assistance, and the average for the bar as a whole is under a half an hour per week.
Of course, law schools by themselves cannot transform those priorities. Nor is pro bono service by itself the primary answer to this nation’s vast unmet legal needs. But legal educators can do more to foster a culture of commitment to public service among future practitioners. And such a commitment could do more to help those with greatest needs and least access to legal assistance.
To that end, I have appointed a Commission on Pro Bono and Public Service Opportunities in Law Schools, as well as a broader Task Force to advise the Commission. Their objective will be to collect information about how law schools promote pro bono and public service initiatives for both faculty and students. In addition, the Commission will share ideas about what strategies appear to be most effective and will make recommendations about what the AALS might do, independently or in partnership with other organizations, to assist law school efforts.
Such initiatives are critical priorities in a society with vast unmet legal needs and legal service providers that are dramatically understaffed and overcommitted. Although relatively few lawyers will find full time employment in meeting these needs, all practitioners and law professors can make some public service an important part of their professional lives. A well-designed array of pro bono choices in law school can expose students to the value of assisting those most in need of assistance. Law schools have a unique opportunity and a corresponding responsibility to make pro bono involvement a rewarding and rewarded opportunity.
Diversity Across Institutions
An equally important professional responsibility of professional education involves diversity. That responsibility has two dimensions. One concerns variation across institutions; the other concerns inclusiveness within institutions. Recent debates over ABA accreditation and AALS membership review processes have raised important questions about diversity in the first sense and about the appropriate scope for institutional innovation.
We have moved a considerable distance from the Association’s first minimum requirements in 1900: ten dollars in annual dues, 10 hours of weekly student instruction, and access to a library with Supreme Court opinions and the home state’s reported decisions. Current standards are somewhat more demanding, and their application has prompted increasing internal as well as external scrutiny. One result has been an extensive AALS self-study, and an effort to ensure that membership standards do not needlessly stifle institutional creativity or unnecessarily raise the cost of legal education. Yet despite substantial improvements,the membership and accreditation processes still raise several questions that should remain at the forefront of AALS and ABA agendas.
The first of these questions is whether detailed oversight of educational inputs — such as facilities, resources, and faculty-student ratios — is the best way of ensuring cost-effective outputs. What might we gain and lose from moving closer to a system that lets a thousand flowers bloom or that gave institutions greater choice about raising delphiniums rather than dahlias?
A second and more fundamental question involves the relationship between the structure of legal education and the delivery of legal services. Recent research suggests that too many students now graduate both underprepared and overprepared to perform certain key tasks. They often are overqualified to offer routine assistance at affordable costs. And they frequently are underqualified in practical skills, particularly those that draw on other disciplines, such as finance, management, counseling, and information technology
The increasing diversity in tasks that lawyers now perform may argue for increasing diversity in educational and licensing structures. For some routine services, three years of law school and passage of a bar exam may neither be necessary nor sufficient. Other nations permit nonlawyers with legal training to serve those needs without demonstrable adverse effects. American law schools could play a leadership role in designing educational, licensing, and regulatory structures that would permit more variation among routine service providers.
So too, legal educators could seek ways of serving more diverse audiences in more diverse ways. At a time of escalating costs, declining applicant pools, and tightening placement markets, legal education could benefit from broadening its mission and potential student body. Some schools might offer courses or shortened degree programs for paralegals, for professionals in law-related occupations, or for lawyers who would receive licenses to practice in limited fields. Other institutions might develop more extensive undergraduate curricula or advanced interdisciplinary opportunities for law students and practitioners.
In effect, we need frameworks that enable law schools to build on their distinctive strengths. Allowing more diversity in legal education could prove a more effective way of matching the diversity in American legal needs.
Diversity Within Institutions
An equally critical priority for legal education concerns diversity within law schools. Initiatives designed to promote inclusiveness are under siege. A growing concern is that affirmative action based on race, ethnicity, or gender perpetuates a kind of preferential treatment that society should be seeking to eradicate. In critics’ view, such treatment implies that women and men of color require special advantages, which reinforces the very assumptions of inferiority that our nation needs to counteract.
Yet while the stigma associated with diversity initiatives can present substantial problems, critics mistake its most fundamental causes and plausible solutions. Assumptions of inferiority predated affirmative action and would persist without it. The absence of women and men of color in key legal roles is also stigmatizing. Moreover, we are unlikely to achieve a society without racial or gender prejudices if we pretend that we are already there or that all forms of preferential treatment are equally objectionable. Disfavoring women or men of color stigmatizes and subordinates the entire group. Disfavoring white males does not.
Moreover, contrary to critics’ assertions, the measures necessary for diversity do not compete with educational quality but rather enhance it. As the recent AALS statement on diversity recognizes, "different backgrounds enrich learning, scholarship, public service, and institutional governance. They promote informed classroom interchanges and keep academic communities responsive to the needs of a changing profession and a changing world." A commitment to diversity is "economically necessary, constitutionally legitimate, and morally imperative."
A professional responsibility of professional schools is to evaluate potential students, faculty and staff on the basis of their full potential contributions. Quantifiable criteria, such as grades and test scores, measure only part of the talents necessary for effective performance.
A commitment to diversity also requires more than adequate representation of historically underrepresented groups. It demands a culture that values their contributions and concerns. By this standard, legal education still falls short. Recent research documents pervasive and persistent problems. Men of color and women of all races are underrepresented in positions of greatest power, status, and reward, such as tenured faculty, senior academic administrators, and law review editors. These underrepresented groups also are more likely to be silenced in classroom and harassed outside it. Issues concerning race, gender, and sexual orientation are often missing or marginal in the core curricula. Given these patterns, it is scarcely surprising that women and minority men report higher levels of dissatisfaction and disengagement with the law school experience. If our goal is to create a community, and ultimately a society, of equal opportunity and mutual respect, we have a significant distance yet to travel.
After underscoring these challenges, I do not wish to close without also acknowledging our recent progress. When I was in law school, few of these professional responsibilities were understood as responsibilities, even in principle, let alone in practice. I had no course from a woman professor and none that addressed women’s issues or professional ethics. Students and faculty of color were noticeable largely for their absence, and sexual orientation was so closeted that many of us weren’t even aware that closets existed. These issues are now central to our Association’s agenda, and that is no small achievement.
Yet our recent progress should not mask the need for further fundamental change. I am grateful for this opportunity to reassess our continuing challenges, and to join with you in their pursuit.
* This article appeared in the February 1998 AALS Newsletter