Ten Major Changes in Legal Education
Over the Past 25 Years
by N. William Hines
This article is continued from the August Newsletter where Professor Hines outlines what he sees as the top ten changes in legal education. Below are the top five changes.
5. Growth in Interdisciplinary Teaching and Research.
In 1980 only a handful of law schools were consciously interdisciplinary in their teaching and research. Recruiting to law faculties academics with advanced training in other disciplines was simply not a common practice 25 years ago. Today virtually every law school boasts faculty members with both J.D.s and advanced degrees in law-related disciplines. In 2004 there were over 800 full time law faculty members in law schools around the country who held PhDs along with their law degrees, and there are a growing number of academics without J.D.s who hold full or joint appointments on law faculties.
There are several explanations for this growth in interdisciplinary activity in law schools. One likely cause was pressure from the universities in which law schools were imbedded to participate more actively in university-wide initiatives promoting interdisciplinary collaboration. Besides making law schools more open to the added value scholars trained in a law-related discipline brought to law teaching and scholarship, this development attracted to law schools talented students wishing to complete combined degrees in law and another discipline, some of whom ended up in law teaching. A related factor was the glut on the general academic market of newly minted PhDs in the social sciences and humanities in the 1980s and 1990s. Facing the prospect of unemployment in their specialty, a good number of these elegantly trained young academics went to law school, performed extraordinarily well, obtained some professional experience, and entered the academy as law teachers. Also, the expansion of many law schools’ curricula through the addition of courses dealing with complex social issues such as the environment, health care, intellectual property, immigration, national security, international affairs, etc., where exploring the intersection between law and other disciplines is pivotal, naturally generated a demand for law teachers with multi-disciplinary backgrounds. In addition, interest in undertaking empirical studies led some number of law professors either to become self-taught social science researchers or to associate themselves with researchers from other disciplines who possessed the requisite skills. My sense is that all of these factors contributed to the substantial increase in law faculty members professionally prepared to undertake interdisciplinary teaching and research, and personally committed to doing so. The great outpouring of interest and support I have received in implementing my 2005 AALS theme of Empirical Scholarship has made me keenly aware of the tremendous amount of interdisciplinary work currently underway in law schools around the country.
4. Increased Attention to Professional Skills Training.
Law schools’ commitment to formal training in a wide range of practice skills was still taking shape in 1980. Many schools had already developed successful legal clinics in house or outside the school in the local community. The feasibility of teaching certain lawyer skills through simulated practice settings was being explored and debated. Throughout the decade of the 1980s, however, the practicing bar continued to pressure law schools to do even more to prepare graduates to enter practice with higher levels of practical skills. This pressure gained focus and momentum with the publication of the McCrate Report in l992, which conceptualized law training as an educational continuum involving specific responsibilities on the part of both law schools and the practicing profession. The McCrate Report identified ten basic lawyer skills and four fundamental values it recommended legal education should be primarily responsible for teaching, leaving it to mentors in the bar to hone these skills and reinforce these values during the early years of practice.
Initially much of the law school world resisted or ignored most of the recommendations of the McCrate Report, but after a decade of considering them and confronting continued pressure from the bar on the accreditation process to implement them, there are few law schools today whose curricula do not strongly reflect their influence. The recent ABA report on curriculum changes between 1992 and 2002 notes that one pronounced trend has been the growth in opportunities for students to gain practical experiences in representing clients within supervised clinical settings and the proliferation of courses emphasizing discrete professional skills, such as factual investigation, interviewing, counseling, negotiation, mediation, and litigation -- the core agenda of the McCrate Report.
The Clinical Section of the AALS has long been one of the Association’s largest and most active sections. The Section maintains a valuable listserv focused on teaching techniques, and it is the only AALS section to offer a professional development conference for its members annually.
One other notable curricular development in this area since 1980 is the enormous growth in the availability of externships that allow students to perform legal work for credit in public interest firms or government offices. This type of opportunity for students to gain practical professional experience outside law school became so popular in the 1990s that an elaborate set of new accreditation standards became necessary to assure the academic integrity of the enterprise. While some schools still bristle under these additional regulations, the new standards generally succeed in balancing the benefits from an enriching professional experience with the need for qualified supervision and a substantial educational component.
3. The Revolution in Digital Technology.
Because Robert Stevens’ comprehensive history of U.S. law schools was published in the early 1980s, it contains hardly any mention about the digital technology that was just starting to emerge as a major force for change in law and legal education.. Equipped as most of us now are with our sleek notebook computers, scanners, laser printers, blackberries, cell phones, web sites, listservs, e-mail addresses, electronic classrooms and all of the other accoutrements of the digital revolution, it is hard to imagine how legal academics got work done 25 years ago. Yet as I recall, we did pretty well with legal pads and #2 pencils, Dictaphones, electric typewriters, primitive Xerox machines, and land-line telephones, while doing hands-on library research and unassisted classroom teaching. In the typical law school today, however, virtually everyone in the enterprise has their own personal computer, all the essential peripherals, and access to a plethora of marvelous software programs, giving them instantaneous access to a staggering amount and variety of information and ideas from all around the world, not to mention the extraordinary communications power these modern tools bestow.
In his new book, “The World Is Flat,” New York Times columnist Tom Friedman argues that the electronic revolution has “flattened the earth,” leveling the economic playing field in ways that empower individuals and small firms to compete globally. There is certainly strong evidence to support Friedman’s thesis when you look at the dramatic changes that have occurred in law practice and legal education in the past quarter century. The substantive content of the law for which lawyers are responsible has expanded rapidly, to be sure, but at nothing like the rate the capacity to find, process, analyze and apply legal information has increased. Traditional law firm libraries have largely been replaced by virtual libraries supported by gigantic and ever evolving digital data bases. Classroom teaching of law has been augmented by numerous electronic innovations, instruction in research methods has changed dramatically, and the ease of communication between students and teachers has created a new type of 24/7 learning partnership outside the classroom. Faculty scholarship has also been altered in significant ways, the most obvious being the global stage on which scholarly exchanges about legal issues now routinely occur, the implications of vast databases for conventional and empirical research, the ease with which manuscripts can be prepared and edited, and electronic publication modes that makes it possible to share early drafts of papers with colleagues around the globe and receive rapid feedback from them. In this vein I am pleased to report that the AALS Office plans to make a substantial investment to upgrade its electronic technology this year to increase internal efficiency, allowing the Association to support listservs for all Sections and publish Section newsletters electronically. Looking forward from this vantage point in 2005, it staggers the imagination to contemplate where we will be in 2030, if this revolution in digital technology continues at the current pace.
2. Continued Diversification of the Law School Community.
The diversification of American laws schools’ students and faculty members was well under way by 1980 as a result of the surge in women’s enrollments in the 1970s and increasing affirmative action efforts on behalf of minorities. The aspiration to have the participants in the legal education process more or less mirror the demographics of the larger society was, however, still very far from realization. Statistics from the Fall of 1980 show that 66% of law students were men, 34% were female. Racial or ethnic minorities combined made up 8% of law students in 1980. Over the next 25 years, the percentage of women in law school rose steadily until it leveled off at 49% in 2000, where it has remained, with small annual variations. The most recent national law school statistics for the Fall of 2004 show the male/female numbers at 52% v. 48%.
Notwithstanding an aggressive public commitment by the ABA in 1980 to assure “full opportunities” for minorities in the legal profession, the percentage of minority law students rose slowly, but quite steadily, over the next fifteen years, hitting a high point of 20% in 1995. Minority enrollments then settled back a little for several years when court cases ruling racial preferences unconstitutional and state referendums restricting affirmative action reduced minority enrollments in several large states. Total minority enrollments have now rebounded to their highest level in history, nearly 22% in 2004-2005, but neither African-American enrollments nor Native-American enrollments have recovered to the peaks they reached in the mid 1990s.
Perhaps the most notable change in the minority population of U.S. law schools since 1980, besides its sheer growth, is in its internal composition. In 1980 African-Americans made up 52% of minority law students, Latinos comprised roughly 30%, Asian-Americans around 10%, and Native-Americans less than 4%. By the 2004-2005 academic year, Asian-American applicants to law schools had surged nearly 50% higher than their numbers in the mid 1990s, and Asian-American enrollments had climbed to 37% of the total minority population. By contrast, the volume of African-American applications remained flat over the past decade and African-Americans dropped to 32% of the total minority population in 2004-2005, while Latinos and Native Americans remained close to the same proportions as they represented 25 years ago. It will be interesting to see whether the U.S. Supreme Court’s 2003 Grutter decision, approving some degree of racial preference in law school admissions, will lead to a substantial increase in the enrollment of members of the least well represented minority groups, whose presence at many law schools falls far below the “critical mass” rationale embraced by the majority opinion.
Faculty diversity necessarily trails student diversity during an era of rapidly changing demographics within the student body because nearly all law teachers are law graduates, and they typically do not enter law teaching until five or more years after completing law school. Therefore it is not surprising to discover that the Fall 1980 national statistics show men still holding 85% of full-time law faculty positions, while women held only 15%. Minority law teachers were also proportionately fewer in 1980, representing just 5% of all full-time law teachers. The numbers of both women and minority full-time law teachers increased steadily over the last 25 years, but there are still significant gaps between the numbers of men and women full-time law teachers, and between full-time majority and minority teachers. Women and minority law teachers trail the percentages of women and minority students currently in law school by about the same one-third margin.
Statistics for Fall 2004 show men now holding 66% of full-time law teaching positions and women holding 34%. Minority law teachers now hold 16% of full-time teaching positions nationwide. These distributions are not likely to change rapidly. A quick look at the 2004-2005 AALS Faculty Appointments Registry reveals that 34% of the over 900 registrants who reported their gender were female, and 22% of the registrants who reported their race or ethnicity were minorities. I note in passing that, in another change since 1980, the AALS Faculty Appointments Registry, which is now searchable on line, has emerged as the dominant channel through which prospective law teachers are identified for recruitment by law schools seeking to add faculty.
In summary, there has been substantial progress since 1980 in diversifying the nation’s law schools, in both students and teachers, but most law schools still have some way to go for their law school communities to “look like the face of America.” The current AALS membership requirement urging law schools to “seek to have a faculty, staff and student body which are diverse with respect to race, color and sex” still appears necessary if the Association is to advance its core value of increasing diversity in the legal profession.
1. Globalization of Law and Legal Practice.
In 1980 only a small number of law schools had staked out international law or comparative law as the niche in which they wished to develop their reputations. I am not certain whether these schools were prescient or just lucky, but they certainly gained a leg up on the rest of the law school world by being at the forefront of globalization and the remarkable sea change it is working in the way law is practiced, studied and taught. The shrinking of the world through trade, travel and instant communications means that lawyers from county seats to regional cities to Wall Street have a common interest in the legal elements of international economic developments, whether the U.S./Australia Free Trade Agreement, the latest round of the GATT negotiations or the continuing ABA debate about multi-jurisdictional practice. U.S. law firms have offices overseas and a substantial number of lawyers represent both domestic and foreign clients in a variety of transnational transactions and in multiple other legal settings. Last year the U.S. imported $1.5 billion in legal services from overseas, while exporting $1.25 billion worth of legal services. It is the rare lawyers’ gathering or academic conference today at which one segment of the program is not devoted to the pervasiveness of transnational legal issues, the implications of the continued globalization of law practice, or some current issue in international law.
Law schools find themselves racing to keep up with the rapid pace of the changes wrought by advancing globalization. There are few law schools today that have not lifted their vision to the world legal scene through enriched curricular offerings in international, transnational and comparative law, recruitment of foreign faculty and students, overseas semester or summer programs, exchanges of students and teachers with foreign law schools, creation of graduate programs for foreign-trained lawyers, visiting teachers and speakers from foreign legal cultures, etc.
Twice during the past ten years AALS Presidents have designated the implications of globalization for the future of legal education as the theme of their presidential year, and I’m sure the theme will be recycled again in the next few years. An International Law Schools Association is currently being formed with the assistance of AALS. The initial charter for this embryonic organization was preliminarily approved this Spring at a meeting in Turkey, and very soon law schools around the globe will be invited to become charter members. My crystal ball is not up to the task of predicting the specifics, but I would wager that over the next 25 years the changes in the professional lives of U.S. lawyers and law teachers wrought by continuing globalization will more than eclipse those we have seen since 1980.
So there you have it, my Top Ten list of major changes over the past quarter century. Others creating their own lists will likely select different changes to emphasize. There are numerous worthy candidates I thought of including, but did not. A 2nd Ten list might include such changes as the broadening and deepening of upper-level curricula, improvements in the range and quality of law library services, growing reliance on standardized tests as gatekeepers to law school and the bar, emergence of distant education as a respectable learning option, importance of financial aid in recruitment and retention of meritorious and diverse students, increasing differentiation of the roles of participants in the legal education process (traditional classroom teachers, clinicians, skills teachers, librarians, LRWs, etc), increased mobility of faculty, limited successes in efforts to deregulate or reduce regulation by accrediting agencies, proliferation in student co-curricular and extra-curricular activities, assertion of more active governance roles by faculty and students, improvements in the economic rewards for deans and faculty, substantial growth in numbers of law schools’ administrative personnel and student services staff, the widening gulf between the legal academy and the practicing profession, and substantial growth in the size of the legal education enterprise generally (numbers of accredited law schools, students, faculty, support staff, and infrastructure).
One thing this listing of over twenty observable changes in legal education since 1980 should make abundantly clear is that we law teachers live and work in a highly dynamic professional environment. I would love to know what else readers of this column think has been going on in legal education the past 25 years. What other major changes have I left out? Are some of what I identify as major changes really only trivial in impact? Have I overstated or understated the case for any of the changes I chose to highlight?