Law Schools Face Changes and Challenges

By Gerald Torres

There are plenty of good reasons to come to Portland in the summer. It is the season in the Pacific Northwest when clouds blow away, the skies clear and the short days of winter give way to lingering warmth and blooming hillsides. The Rose Garden bursts with exquisite, fragrant splendor and Mt. Hood fairly glows in the reflection of russet sunsets. But this year’s Mid-Year Meetings of the AALS provided additional justification to pay a visit. While participants had the opportunity to sample all these pleasures they were enhanced by the energy the sessions generated. The substantive meetings were crackling with insight and imagination. Moreover, as always, the Meetings offered the chance to see old friends, renew acquaintances or make new friends in one of America’s great cities.

The week began with considerations of race in the curriculum and with reflections on the distance we have traveled in the fifty years since Brown. The substantive considerations ranged from the doctrinal to the jurisprudential and philosophical. Certainly, the shadow of Grutter and Gratz loomed over many of the discussions including those in the hallways as well as those from the podium. Questions of economics and wealth creation emerged and supplemented both conventional and critical theories of racial justice. The ways in which the revolution in race relations had or should have transformed the content of the curriculum also precipitated animated conversation. What was clear is that there had been an important shift in thinking about race and the law. The conversation that emerged during the civil rights movement had changed decisively. It changed not because the ends of the movement have been achieved, but because the political and economic context in which they would be struggled over had changed.

Such shifts were echoed in the subsequent meetings on property and environmental law. Once again, discussions on ends and means, goals and methods were wide ranging. Once more it was the radical transformation of the context that caused the commentators to pose serious questions about whether the existing doctrinal architecture could support a coherent development of the law. Changes in technology coupled with rapid globalization and all that entails posed the most significant challenges. The two meetings came together in the panel discussion of environmental justice where race, environmental law, property rights, environmental regulation and international law all collided and the products of the week’s discussions saw fruit. What was most impressive was the work that people were doing in all of these cognate areas. The emergence of outstanding teaching tools promises to make the curricular and doctrinal integration somewhat easier.

What the week of meetings, formal and informal discussions highlighted was that we are in a period of rapid changes that will pose serious challenges to legal education. The challenges will come from conditions that are endogenous and exogenous both to the academy and to the legal system. The meetings largely addressed the problems that those of us who teach, research and write will face. There are other more difficult and confounding problems and they will make what we do harder.

Perhaps the first and most immediately pressing problem is the swift run up in the cost of providing and obtaining a legal education. The cost structure that will define the form of legal education is in large measure out of the control of most schools. According to the ABA, over the past 13 years the total cost of providing a legal education rose about 60% with salaries leading the way at 64%. Part of the cost increase is reflected in additional financial aid, the cost of which climbed 38%. This was matched by the debt that students carried. At public law schools the average student loan debt rose 30% while at private schools the debt load went up 35%. The increase in debt was driven by the rise in overall costs of attending law school, perhaps the largest part of that coming from regular tuition increases. For example, the average resident tuition at public law schools increased by 134%, while non-resident tuition rose by 173%. The increase was lower at private schools but a still substantial 118%. There are going to be localized market variations that contribute to the increase of costs of going to school, but student contribution to the overall production of legal education will remain the most significant portion.

Each of these figures, and the realities behind them, ought to cause those of us in legal education to ask what they mean for the near term future of legal education, as well as for the long term planning that needs to take place at each school and in the legal academy more generally. One of the things that has distinguished law schools within the university, even among the professional schools, is that law schools have a public mission that is intrinsic to the training of lawyers. This is true whether the graduates go on to practice in conventional law firms, corporations, governments, NGOs or public interest firms. The role that law plays in the public life of the republic and the freedom of lawyers to largely regulate themselves all contribute to this responsibility. The twin imperatives of excellence and access should guide the consideration of the changes that will have to be made in order to adapt to the changes that will emerge from these rising costs.

The changes that the schools adopt will also occur in an increasingly stratified profession, a stratification found even in the academy itself. One of the implications of this stratification is that the graduates of our various law schools face an increasingly differentiated job market. Another way to put it is that the opportunities facing graduates will become ever more radically disparate. The compounding of these trends over time may well create tensions within the academy as well as within the profession. As elite law schools move toward a fuller integration into the university, the public responsibility implicit within law training becomes more attenuated.

Let me say a little bit about each of these challenges. The rise in the cost of providing and obtaining a legal education threatens the capacity of schools to provide access to a student body that reflects the class and income divisions within our society. If the decline in access reflects a restriction in opportunities that a legal education traditionally provided, both the profession and our society will be poorer. If, as some have suggested, the stratification in law schools results in a radical stratification of opportunities, then the questions of excellence and access become paramount.