By Lauren K. Robel
Last week, the National Law Journal published its Top 10 Law School Stories of 2011. Mercifully, one of them involved a dog. The NLJ reported that a compassionate Yale law librarian brought Monty the dog to the stacks to soothe students’ exam-jangled nerves.
The remaining nine stories constituted the past year’s bill of particulars against law schools. The stories were arrayed along a fairly narrow spectrum from dreadful to horrible: breaches of data integrity; calls for Congressional hearings about law school debt or graduate unemployment; declining applicants; high and rising law school costs; lawsuits by graduates; and claims that legal academics are, in the NLJ’s striking summary, “ivory tower-dwelling chin strokers who neglect to teach their students how to practice law.”
Perhaps law schools should have engaged more adorable animals this past year!
Many law faculty, administrators, and staff who have committed their lives to legal education are deeply disheartened and dismayed by the past year’s barrage of negative press, consumer class actions, and senatorial suspicion. Some of the critics frame their stories in ways that cast those in the academy as the adversaries of our students and graduates. To most of us who make our lives in the legal academy, these stories have been painful, sometimes excruciatingly so. Our vocation commits us to do our level best to honor and bring to fruition the hopes and dreams of the human beings who entrust their futures to us – and to do this with full knowledge that we are preparing our graduates to be the guardians and advocates of those who will in turn entrust their futures, dreams, hopes, businesses, families, and lives to them. This is not trivial work, and few could sustain it without the deeply human rewards it brings. Much of the human joy of being a teacher comes from the long arc of trust and relationships we build with our students and graduates. At our alumni reception here a few days ago, I stared intently into the face of a former student until I conjured his name. He had devoted his life to the JAG corps. He was now a colonel, and that life had been filled with integrity, purpose, and service. All of our lives are measured most meaningfully by the successes of such a student, and the intense pleasure of seeing a graduate build a career of integrity and purpose is unmatched. Too many of our graduates face the disappointment and frustration of a world that diminishes their chances to use their educations to build such lives and careers, and that is disappointing and frustrating to us as well. We understand that many of them are angry and discouraged.
It is also completely understandable that faculty members are discouraged and angered by suggestions that the entire enterprise of scholarship is irrelevant and unworthy of support. I was appreciative today in the sparkling session with Justice Stephen Breyer of the ways he described the virtuous circle that exists at its best with the academy, the bench, and the bar.
We have a distinctive place in that circle. We are partnered with the profession, but our home is the academy. Scholarly inquiry is as central to our own professional identity as fidelity to clients is to a lawyer’s, or concepts of stare decisis to judges. It increases our understanding of the world and the profession, and challenges and expands our conceptions of what law can do in the service of justice. At the first meeting of this House, as Susan Prager read the names of the colleagues we lost last year, it was not their faces but their ideas that flashed through my mind. Jane Larson and feminist legal history; David Baldus and the relationship between race and capital sentences; Larry Ribstein and the economics of the profession; Derrick Bell and critical race theory. The impact of these ideas has been enormous. One of the most inspiring speakers at Thursday’s Workshop on the Future of the Legal Profession and Legal Education was a 2009 graduate of St. Louis University’s School of Law, Thomas Harvey. Fresh out of school, he and two of his classmates had the courage to create a nonprofit, ArchCity Defenders, to provide holistic legal services to individuals, mostly homeless, facing state prosecution. All three of them do this in addition to other legal work, Thomas in a solo practice. Their nonprofit has already won both a contract with the city and awards from the Bar Association in St. Louis. When he spoke about what inspired him to do such a thing, Thomas explained the importance of his critical race class, an international human rights internship, and a clinical experience. Derrick Bell’s work lives on in the immense service Thomas Harvey provides to the otherwise voiceless population he serves. Scholarship should not require a sustained defense, but if it does, I would point to Thomas Harvey.
Many of us were also puzzled by the New York Times’ editorial suggestion that Christopher Columbus Langdell might be transported to any law school in 2011 and fail to notice that the century had changed and he wasn’t at Harvard anymore. The four new member schools initiated into the Association two days ago nicely illustrate the breadth and diversity of the legal academy. Those schools include a historically-black public school with a strong bent towards access that fosters the professional success of people who are historically underrepresented in the profession; a religiously-affiliated school with a mission of inculcating a particular vision of professional accountability; an urban school with full and part-time programs; and a brand-new private school with a cooperative education program rich in externship opportunities. I think Langdell would be delighted by the diversity he would see in legal education, not only in the missions of our member schools, but also in the curricula they offer.
The AALS has been a showcase for curricular innovation. Examples abound, including this Annual Meeting, with its terrific day-long Workshop on the Future of the Legal Profession and Legal Education and this past summer’s AALS Mid-Year Conference on the Future of the Law School Curriculum. Both demonstrate how many faculty members and schools have worked hard to embrace thoughtful curricular innovation about everything from professional competencies and leadership skills to transactional and global lawyering. The popular narrative about law schools, even among many in the profession and the judiciary who know us best, misses so much of this activity and diversity. That is our problem to correct.
I have been most struck, however, at this Annual Meeting in particular, by how most in our community have resisted the urge to turn a defensive face to this wall of critique and have instead engaged with its questions. I support the characteristic generosity and intellectual honesty of this impulse. For the sake of our students, our graduates, and the society we serve, we are right to bring the rigorous and open-minded analysis that characterizes our scholarly and teaching commitments to bear on the questions that legal education’s critics raise. We are also right both to engage with the profession that is our partner in ensuring the quality of legal education and to insist on their partnership in the education of young lawyers. We must think carefully about whether an issue is unique to legal education, or common to challenges facing higher education, or even our country, more generally.
What an adventure to imagine and reimagine our schools, our teaching, and our scholarship in light of the changing world. Many of the most pressing and complicated current questions surround the relationship between the destabilized profit model of the profession at the largest law firms, and the financing and cost of legal education. Much of the commentary on the cost and financing of a law degree has focused on this relationship, and much terrific scholarship focuses on it as well. While our relationship with the profession tells part of the story, can we add to our understanding by shifting the frame to our commonalities with higher education generally?
Law schools are not unique in many of the questions we face, whether they surround the amount of public investment in education (directly or through student loans), the amount of student debt, the value of incurring educational debt in light of employment returns, or the causes of rising instructional costs. Legal education shares all of these questions about financing and cost with higher education generally.
These topics raise complex questions about which reasonable people can and do disagree. We can all agree that there is certainly room for schools to reduce or redistribute costs, and we all have our favorite examples of law school costs we think are unwise or unjustified. Nonetheless, we would get new insights into questions of cost and financing if our analysis put law schools back into context within higher education more generally and distinguished more among their missions. For instance, we are experiencing the rapid privatization of public education, including public legal education, a long-term trend that has accelerated as a result of states’ economic distress. The scope of public disinvestment in public higher education, and public legal education, is unprecedented. In many ways, in-state tuition at public law schools sets the floor for law school costs more generally. The ABA’s President, Bill Robinson, mentioned in his address here a few days ago that over 65 law schools in the country have tuitions at or below $26,000. I am willing to bet they are almost all public. Now do a thought experiment; imagine the overall effect on costs at all law schools if public support for public schools had not dropped so precipitously. Discussions about costs that do not take account of this broader context – discussions that frame cost issues as if law schools’ cost structures were all the result of unconstrained choices, student behaviors, US News, and labor market restructuring – miss a critical part of a broader story about the cost of legal education.
What do we lose if we lose public legal education? How does pulling this thread affect the other parts of legal education? If our analysis does not identify and acknowledge the impact of severely reduced public investment in higher education, and in turn on students and the share of cost they are asked to absorb as a result, it tacitly accepts privatization without examining its premises or its broader impact. It tells an incomplete story. Fuller pictures are better, as we think about cost, financing, and the elements of our system of legal education that have made it so attractive globally.
And in what new ways might we cooperate and collaborate to improve quality without increasing costs? US News didn’t invent hierarchy, nor would hierarchy disappear tomorrow if the magazine were gone. But its rankings have contributed to an atomistic culture that frames us all first and foremost as competitors. We will always compete for the best faculty and students. But my sense is that we also ache for a more cooperative, collaborative culture, one that honors our shared sense of the importance of our missions, the urgency of the changes we are facing, and the importance of the work we do in the world.
What an adventure it would be to be the architects of that culture! And what inspiring and imaginative steps in that direction we have heard at this annual meeting. We have heard about wonderful classes, like the one taught by Lou Bilionis and Judith Wegner, that link different schools through technology to share a vision for professional development. We have heard about consortia, such as Law Without Walls and Educating Tomorrow’s Lawyers, and the Labor Law Group, among others, that cross traditional law school hierarchies and use technology to share the costs, and the best ideas, in service of students and research. We have heard many wonderful initiatives that connect lawyers, teachers, and students through technology in ways that are both replicable and ripe for multi-school participation. AALS has always provided a forum for sharing the best ideas about scholarship and teaching. It can play an important role in helping connect us through new and imaginative collaborations to reduce our programmatic costs and increase the benefits for our students.
Like the question of law school costs, the serious questions surrounding the legal profession, and the nature of the change it is experiencing, are shared with many other service professions. We are extraordinarily lucky to be experiencing a boom in high-quality, empirically grounded research on the profession in law schools. We learn even more when we connect that research, as many legal academics have begun to do, to the experiences of other professions.
Those experiences, in our own and other professions, are profoundly shaped by the effects of a globalized economy and globalization more generally. No matter what happens with the domestic economic situation, globalization is to the immediate future of the profession, and of legal education, what rapid and inexorable technological change was to our immediate past. Justice Breyer spoke today about its impact on the Supreme Court’s docket. It affects deeply such diverse areas of the law from the balance of power between the states and the federal government, and among the branches of the federal government, to the ways in which litigation is shaped. The scholarship that has poured out of the legal academy on globalization, the debates that scholarship is framing with respect to both public and private law, and the opportunities for imaginative engagement with the world, are staggering.
So let me make three points.
First, globalization’s effects on practice are more pervasive than we generally recognize and reach much more broadly across practice contexts. As many have observed, this pervasiveness has broad implications for law schools.
Second, law schools are already enormous sites of globalization, driven in large part by U.S. higher education’s stellar and deserved reputation internationally. This phenomenon gives us huge opportunities to prepare our students for their future in creative and exciting ways – especially if we are willing to collaborate and leverage common resources.
Third, it is time for the AALS to go global.
I have been surprised by the resistance to the argument that globalization pervasively affects the profession. Few people resist the assertion that large private firms have a global reach, that they have rapidly expanded into other countries, or that they deal regularly with transnational legal issues. But the extent of globalization’s reach into the smallest of practice settings is not as familiar a story. So let me tell you of rural Spencer, Indiana, population 13,000, home to personal injury lawyer, Roger Pardieck. Roger’s website accurately notes the (let me just claim) Hoosier values that have made him successful, including the close and empathic relationships he develops with his clients and the public service that makes lawyers like Roger the backbones of their communities.
Yet Roger routinely engages in transnational work in the products liability cases in which he has developed a small specialty. To win those cases, he has to follow products up the global supply chain, which regularly means out of the United States. One of the cases he has won through careful transnational investigation, for instance, involved comparing the black-box warnings used on a drug in a variety of Asian nations, including Japan, with what was done here. He has also leveraged his time by outsourcing some research to India and tells me that the same Indian firm was willing to take over the front and back office operations of his tiny firm from Bangalore (he politely declined). The idea of Indian outsourcing came through Roger’s connection with a group of personal injury lawyers located around the country, and he speaks of other solo lawyers like him who use this service often to leverage their resources in service to their clients. Like many lawyers in smaller practice settings, Roger is connected to larger networks of lawyers through technology, and those networks give him access to the world.
Roger’s experience on the individual services side of the practice hemisphere is increasingly matched by that of the lawyers who serve the small and medium sized businesses, often family owned, that are being pulled or pushed into unfamiliar transnational waters. The Department of Commerce notes, for example, that more than a third of U.S. exports to China were from over 16,000 small to medium-sized businesses1. The number of small manufacturers who source parts overseas, or have moved their manufacturing across borders, is huge. Whether because of sourcing or outsourcing needs or because of other market opportunities, smaller business entities that have traditionally used in-house counsel, or smaller regional law firms, now need legal counsel who can plan and execute cross-border transactions, and their lawyers have to be able to provide these services if they want to retain that business. In turn, this set of legal competencies requires familiarity with a host of regulatory schemes, both domestic (like the Foreign Corrupt Practices Act) and nondomestic. And it requires new kinds of knowledge, such as how the legal professions in other countries are, and are not, like the one in the United States.
As Laurel Terry’s work has demonstrated, those who negotiate bilateral trade agreements increasingly conceptualize lawyer regulation as a form of trade barrier. The U.S. has entered over fifteen agreements that, at least in theory, commit us to understanding what this means in practice. These developments raise huge questions about lawyer regulation, but as a result, other countries, like Korea, are opening in new ways to foreign lawyers, including lawyers from the United States.
Globalization creates risks for the profession, but it also creates opportunities. And whether the profession can seize those opportunities depends in part on understanding and enhancing the role that U.S. legal education plays in creating an increasingly large cadre of foreign lawyers who have studied in our schools and in successfully building professional networks between these students and our J.D. students.
Colleges and universities, law schools included, are already massive sites of globalization. In his book, The Great American University, Jonathan Cole notes that “American higher education represents one of the few sectors of the U.S. economy with a favorable international balance of trade.”2 This is certainly true for U.S. legal education, where the number of LLM degrees, primarily to foreign students, grew by 65% between 1999-2009.3Ironically, at a time when U.S. legal education is subject to such broad domestic criticism, the global attractiveness of U.S. legal education, and a U.S. law degree have never been higher.
The profession’s ability to compete globally is enhanced by assuring that a U.S. legal education remains important not only to those who come from abroad, but also through our creative thinking about how to work together to create and sustain curriculum, scholarship, and linkages that engage globally.
During the past year, the AALS Executive Committee asked for a report from a special committee, chaired by the visionary Judith Areen, on the Association’s role in a global future. That report outlines a host of actionable ways in which the AALS can support our members as they engage with global issues and pursue collaborative opportunities for their students.
Critical to these is providing our schools with more ways to lower the cost barriers to engagement with our colleagues in legal education abroad and to our students’ engagement with the world. As we move forward with implementing this work, our focus will be on assuring that we work closely with our members to support initiatives that you tell us are important to you, that facilitate sharing and collaboration, that work to provide resources for important connections, and that provide non-U.S. law schools and faculty more opportunities to engage with our member schools.
To conclude, we all recognize that we have real issues to address in the academy, including indefensible breaches of public trust around data, and difficult and complex questions of cost and financing. I hear deep commitment from my colleagues at our law schools to address these issues head-on, and collectively, and this Association will support you in every year.
But it’s a new year. Let’s approach it from a new place. Let’s declare a new zeitgeist and commit to build its vocabulary. Here’s my vocabulary list:
Integrity. Collaboration. Imagination.
Global engagement. Adventure. Possibility.
And maybe one more from the old days: Hope.
- David A. Steiger, The Globalized Lawyer ix (2008).
- Jonathan R. Cole, The American University: Its Rise to Preemience, Its Indispensible National Role, Why It Must Be Protected 4 (2010).
- Karen Sloan, Increased Scrunity for LL.M.s: New Hundles for Foreign Trained Attorneys, Nat. L.J., May 23, 2011, at 4.