Ten Major Changes in Legal Education
Over the Past 25 Years
by N. William Hines
The proposition that change is an integral part of the human condition has been advanced regularly ever since people first started writing down their thoughts. The Greek philosopher Heraclites invoked this insight poetically in 500 B.C. when he penned: “You cannot step twice into the same river.” In June 2005, Latifa Al Maktoum, a senior graduating from Zayed University, a women’s college in the United Arab Emirites, expressed the same idea in her student commencement address in these words: “They say the only constant in life is change. Whether good or bad, promising or hopeless; whether it happens overnight, or whether it takes years, change is inevitable. People change too; the only difference is that we have a choice in how we want to change.” Legal education is certainly as subject as any other institution to the phenomenon of change, but in our world there is always reason to wonder how much choice we actually can exercise over its direction.
In my last President’s Message I cited favorably Robert Stevens’ exhaustive history of U.S. law schools, which traces the development of legal education in this country from Colonial times up to the early 1980s. Many changes have occurred in U.S. legal education since the publication of Stevens’ book. In this month’s message I propose to identify what I think are the ten most important changes in the law school world during the past 25 years. My enumeration of major changes is not exactly a David Letterman Top Ten recital, but it does lean in that direction. Drum roll, please.
Number 10 – Effects of the U.S. News Rankings;
Number 9 – Emphasis on Professional Ethics and Responsibility;
Number 8 – Ramifications of the Rising Cost of a Legal Education;
Number 7 – Financial Reliance on External Constituencies;
Number 6 – Professionalization of Legal Research and Writing Instruction;
Number 5 – Growth in Interdisciplinary Teaching and Research;
Number 4 – Increased Attention to Professional Skills Training;
Number 3 – The Revolution in Digital Technology;
Number 2 – Continued Diversification of the Law School Community; and
Number 1 – Globalization of Law and Legal Practice. Let me elaborate my reasons for including these specific changes in my Top Ten list, and indicate what AALS has done to assist member schools adapt to them.
10. Effects of U.S. News Rankings
It may seem odd to start a list of major changes in legal education with a popular magazine’s annual survey. I suppose it is just a former dean thing. I readily admit to some bias on this point, having agonized over the U.S. News rankings every year since their inception in l987, but I am not alone in my concerns. As recently as this April a formal symposium was convened at the University of Indiana to discuss the next generation of law school rankings and their projected impacts. Add up all the time, money, energy and angst wasted by leaders in American legal education that are directly attributable to the U.S. News ranking, and I think it is hard to dispute their place on a Top Ten list, troubling though that recognition might be.
Before U.S. News stumbled on to this relatively inexpensive way to boost magazine circulation by manufacturing a type of news about which Americans seem to have an insatiable curiosity, there were other ratings of law schools around, but no one paid much attention to them. This disinterest was because they either ranked only a few very top schools, or if they purported to rank all law schools, they almost totally lacked credibility. By creating a seemingly “scientific” ranking scheme combining surveys of the opinions of “experts” about reputation with analyses of a number of hard facts presumably associated with quality, U.S. News created a news product that was much harder to ignore or discredit. Once the magazine started its present practice of ranking all ABA approved law schools in 1992, it attracted the attention of the entire legal profession because everyone who was a law graduate, teacher, student or a prospective student wanted to know where his or her school was ranked.
A person from a different discipline or culture could sensibly ask: How could a mere magazine ranking have so profound an influence on the whole of legal education, particularly when the leaders of the legal education establishment (including AALS) have, since 1990, been in rare and consistent public agreement that it is deeply flawed and should not be taken seriously? The answer may be hard for someone outside the academic realm to believe, but the U.S. News rankings cause problems simply because too many consumers of the rankings, some of whom should know better, take them far too seriously. These consumers include central university officials, boards of trustees, legislators, alumni leaders, potential donors, faculty candidates, upwardly mobile faculty, current and prospective students.
What are the problems to which I refer? Here are three examples of distortions that excessive concern over U.S. News rankings have been known to create. First, and most obvious, is the torrent of promotional materials generated over the past decade by schools wishing to raise the visibility of their programs in the eyes of the deans, faculty members, judges and lawyers who are invited to complete the reputation surveys that make up 40% of the ranking. In times of tight budgets, it is not hard to imagine that schools could put the resources expended on this self-promotion to more productive academic uses.
Second, because the average LSAT score of every school’s entering students is a critical factor in the rankings analysis, there is reason to believe a substantial number of law schools may have adjusted their admissions practices to give greater weight to the LSAT than the LSAC itself recommends. This practice operates to the obvious detriment of applicants with high GPAs, but less than outstanding LSAT scores, some of whom would very likely enhance the diversity of the school. Partly to discourage this practice, the official reporting of a school’s LSAT as a median number was changed a few years ago and schools now report only the 75th and 25th percentile numbers. This countermeasure was foiled by U.S. News, however, by simply averaging the two numbers reported to create its own proprietary median number, ignoring completely the likelihood that in some cases the school’s actual median would be different. LSAT is reportedly working on creating an LSAT score that is tailored to each individual school’s application pool, thereby eliminating a number that has national significance. All of this unproductive churning is the result of the perception that U.S. News ranking analysis induces schools to inappropriately over emphasize LSAT scores in their admissions decisions. Reducing the size of the entering class or shifting marginal entrants to part-time programs are other strategies some schools are alleged to have adopted to improve their LSAT showings.
Third, another sensitive factor in the U.S. News analysis is the rate of student employment at graduation, information that, unlike almost all other data schools are requested to report, is not subject to external verification through published ABA consumer information reports. There is reason to believe that law schools have manipulated this reporting by such practices as treating students temporarily employed in non-legal jobs as fully employed as lawyers, or by hiring all of their own students who are unemployed at graduation as temporary employees of the school. It is also suspected that some schools may engage in creative accounting measures to inflate this data.
Instead of undertaking questionable strategies to improve the statistics they report, why don’t schools just opt out if they think the rankings are bogus and hurtful? Two reasons: If a school does not respond to the U.S. News request for information, the magazine will then estimate the missing data and publish its ranking on that basis. Second, besides facing the risk of unflattering estimates, many schools feel they are in a prisoner’s dilemma; they would not participate if they could be sure competitors were not participating, but they cannot be so assured and thus they feel they must protect themselves by furnishing the requested data.
Realistically, it is unlikely the U.S. News rankings will go away any time soon. The legal education establishment has pressed U.S. News for years, that if they insist on doing these annual rankings, to limit their publication of law school rankings in the same manner as they do all their other rankings, that is, to publish only a top 25 or top 50 listing instead of purporting to rank every accredited law school. Until such a change is made, deans will continue to be fired or retained, faculty will accept or reject offers, law firms will hire or not hire graduates, and students will enroll or not enroll on the basis of unreliable, if not misleading, information published in the U.S. News rankings.
9. Emphasis on Professional Ethics and Responsibility
In the post-Watergate years leading up to 1980 there was a constant, though somewhat misguided, public demand for law schools to place more emphasis on formal instruction in legal ethics, and the ABA ultimately amended its accreditation standards to require that every student must take a course in the subject. Ethics teachers of the time, however, generally felt this formal requirement missed the point because the conventional legal ethics course was both over inclusive and under inclusive in regard to the ethical sins of the key players in the Watergate cover up. There were also high profile debates within the legal academy during this era about the application of the duties of confidentiality and loyalty to the criminal defense bar.
My sense is that while many of the same issues still foment disagreement today, the voices in the current debate are much more diverse and the positions taken are both less polar and involve drawing more subtle distinctions about lawyer misbehavior. Also, the range of issues drawing attention from both the bar and the academy is much broader today than 25 years ago. For example, the fairly recent revisions of the ABA Model Code, the Ethics 2000 Report and the Sarbanes-Oxley law have all intensified discussions of longstanding ethics issues, and the globalization of law and legal practice has added a new set of issues to the traditional inquiries about how a professionally responsible lawyer should meet duties to clients, courts and the public.
Another new dimension added to the professional responsibility mix in law schools since 1980 is the ongoing campaign to elicit greater pro bono service from the practicing bar by instilling in law students (and faculty) a stronger commitment to undertake pro bono work on behalf of clients of limited means. In 1996 the ABA amended its accreditation standards to call on law schools to “encourage students to participate in pro bono activities and provide opportunities for them to do so.” In l997 the AALS created a Commission on Pro Bono and Public Service Opportunities.” The Commission’s report, “Learning to Serve,” was published in 1999. It analyzed a national survey of law school pro bono practices and strongly encouraged law schools to do more to promote pro bono activities.
In a few schools today mandatory pro bono requirements are enforced; in other schools volunteer pro bono work is strongly encouraged and rewarded, but many schools still maintain a more laissez faire attitude toward pro bono for students and faculty. In a recent empirical study Deborah Rhode, who appointed the Pro Bono Commission during her term as AALS President, investigated the effects of these different approaches in stimulating pro bono representation by young lawyers. She surveyed the actual pro bono work undertaken by graduates of six law schools. Her preliminary results suggest that the type of law school pro bono program graduates experienced is much less strongly associated with the actual performance of pro bono work in practice than are workplace incentive structures and a personal sense of moral obligation to help others. Rhode’s findings appear to vindicate the skepticism expressed by many in the legal academy toward the premise that students’ personal commitment to provide pro bono services when they enter practice can be significantly influenced by requiring or exhorting students to provide pro bono service while in law school. Instilling in law students an appropriate sense of their professional obligations is obviously an important element of a quality legal education, so the final chapter in this continuing saga is far from written. The question of how best to stimulate greater pro bono legal services to those in greatest need will no doubt continue to enliven academic debate.
8. Ramifications of the Rising Cost of a Legal Education
In 1980 obtaining a legal education was not particularly expensive compared to other types of graduate-level training, and law tuitions were not appreciably higher than tuitions charged undergraduates or candidates for masters degrees. As a result, most law students graduated from law school with little or no debt. Over the past 25 years the costs of providing a quality legal education have escalated much more rapidly than average wages and general inflation, and law tuitions have climbed even faster. The ABA reports that the average law tuition at a public law school is now over $9000 for residents and over $20,000 for nonresidents, while the average private law school tuition is nearly $26,000.
The investment required of students to obtain a J.D. today has increased to the level that most students borrow heavily and few students are able to begin their professional careers without having to repay a substantial student loan debt over the years following their graduation. In 2003, for example the ABA reported the median debt load for graduates of public law schools was roughly $45,000, while the median debt for private law school graduates was nearly $69,000. These figures were just for debt students incurred while in law school, and did not include borrowing carried over from undergraduate years, which for many students was quite substantial.
The ramifications of this high cost/high debt norm for students in the nation’s law schools are not difficult to identify. Higher tuitions mean greater institutional investments in student financial aid, particularly in an increasingly competitive marketplace for students, and this in turn drives costs even higher. High debt loads not only heighten students’ stress associated with finding good employment after law school, increasing the burden on career services offices, they also limit graduates’ abilities to pursue lower paying careers in the public sector. This problem in turn creates a need for government-sponsored loan forgiveness programs to help attract graduates into public interest and public service jobs. Concern about the adverse impact of excessive debt load has also stimulated a number of law schools to establish their own loan repayment assistance programs, but these too add to the cost of providing a legal education. An ABA official recently observed that if the trends described above are not moderated, both the access to legal education and the quality of the education itself will become at risk at a significant number of U.S. law schools.
While the AALS has not been directly involved in efforts to preserve financial access to legal education or reduce student debt loads, in the late 1990s the Association participated in a joint project with other organizations concerned with the implications of rising educational costs and heavy student debt loads. Some of the findings of this study were reported in 2003 in an article in the AALS Journal of Legal Education.
7. Financial Reliance on External Constituencies
The rapidly rising costs incurred in providing quality legal education over the past 25 years, coupled with the shrinking level of support for public higher education in the last decade, have made it imperative for law schools to search more widely for needed revenues. Tuition remains the primary source of revenue for most law schools, but it is worthy of note that the ability of schools to raise tuitions substantially over the past decade, as described above, was in large measure the result of the relative ease with which law students could borrow money on favorable terms to pay a large proportion of their education expenses. The federal program used primarily by law students is the Stafford Loan. In 1993 the Stafford Loan limits were raised by Congress to $18,500, still the maximum annual amount law students can borrow. In 2003 the ABA reported the annual amount of borrowing by law students was $2.55 billion, a high proportion of which ends up going to law schools as tuition payments, making these government loans the single largest source of external support for legal education today.
The second most important source of external support is private gifts from individuals, mostly law alumni, friends of the school, the bar, corporations and foundations. Annual contributions and the income from past gifts of endowment have long been of great importance to private law schools, but over the past 25 years developing similar sources of support has become vital to the financial health of public schools as well. In 1980 ambitious fund raising targeting alumni through annual gift campaigns and the strategic cultivation of major donors were points of emphasis at only a relatively small number of law schools. Today successful development of financial support from an array of external constituencies is vital to most law schools, and specialized development officers and staffs are employed to assist the dean and faculty in friend building and fund raising. The AALS Section on Institutional Advancement was formed in 1985, and the Section has organized a separate day-long program in conjunction with the AALS Annual Meeting since 1986. Cultivating additional sources of external support will only become more important in the future as traditional sources of support shrink and competition for top students and faculty intensifies.
6. Professionalization of Legal Research and Writing Instruction
In 1980 a wide variety of approaches was present among law schools in the way they delivered basic instruction in legal research and writing skills. Some schools assigned full-time faculty to teach these basic skills in conjunction with small sections of 1st year courses. Others employed short term teaching fellows to do this instruction, many schools used their own 3rd year students as research and writing instructors, while others delegated research instruction to their library staff and hired practicing lawyers from the local community as adjuncts to provide legal writing instruction. All of these models no doubt persist somewhere in legal education today, but a dramatic change has occurred with the rise of professional legal research and writing instructors as the dominant choice of law schools for the delivery of this instruction.
The recently published ABA Curriculum Survey indicated that the majority of law schools now require students to take a separate 1st year course in legal research and writing. In most schools these courses are taught by professional instructors who specialize in teaching legal research and writing skills as a career. Teachers delivering the instruction in this relatively recently developed specialty commonly are designated as Legal Research and Writing Instructors (LRWs). The ABA Report also noted that nearly 60 schools had dropped 1st year small sections in the last decade, some of which surely served as vehicles for full-time faculty to provide legal research and writing instruction to beginning students. Not surprisingly, the number of professional LRWs has grown exponentially over the past 25 years. LRWs now have their own national organization, a section within AALS, and for the first time in 2005 there was a special one-day training session for LRWs appended to the annual AALS New Law Teachers Workshop. Organized LRWs have also become a lobby to be reckoned with within the legal academy. They are currently urging the ABA to require law schools to accord them faculty status and perquisites comparable to what are now the norm for clinical faculty.