The ABA Working Paper on the Future of Legal Education

How do we solve a problem like lawyers? The American Bar Association Task Force on the Future of Legal Education has put out its working paper, which Paul Caron sums up:

  • Law school education is funded through a complex system of tuition, discounting, and loans. Schools announce standard tuition rates, and then chase students with high LSAT scores by offering substantial discounts without much regard to financial need. Other students receive little if any benefit from discounting and must rely mainly on borrowing to finance their education. The net result is that students whose credentials (and likely job prospects) are the weakest incur large debt to sustain the school budget and enable higher-credentialed students to attend at little cost. These practices drive up both tuition and debt, and they are in need of serious re-engineering.
  • The system of accreditation administered by the ABA Section of Legal Education has served the profession and the nation well. But it has come to sustain a far higher level of standardization in legal education than may be necessary to turn out capable lawyers. The ABA Standards for Approval of Law Schools also impose requirements that add expense without conferring commensurate benefits. We conclude that the section would serve the public interest by enabling more heterogeneity among law schools. The Task Force recommends that a number of the Standards be dramatically revised or repealed.
  • The ABA’s accreditation system should facilitate substantial innovations in law school programs better than it does today. The current procedures under which schools can seek to vary from ABA Standards in order to pursue experiments are completely confidential and fairly narrow in practice. The Task Force recommends that the ABA Section open its variance processes to full public view and use the variance system energetically as an avenue to foster experimentation by law schools.
  • The profession’s calls for more attention to skills training and experiential learning have been well-taken, and law schools have done much to expand such opportunities for students. There is need to do more. The balance between doctrinal instruction and hands-on training needs to shift still further toward the core competencies needed by people who will deliver legal services to clients.
  • State supreme courts, state bar associations, and admitting authorities should devise additional frameworks for licensing providers of legal services, such as licensing limited practitioners or authorizing bar admission for people whose preparation is not in the traditional three-year classroom mold.

Orin Kerr offered an early view of the working paper:

I’m generally skeptical of ABA reports, but there are a lot of promising ideas in this one. I don’t agree with everything in there, certainly, but there are some significant ideas in there worth taking seriously.

The scamblogger view, unsurprisingly, was less generous:

Here’s the worst: The fundamental tension isn’t one between public good and private good. It’s one between the financial incentives and positioning of generation A vs. the financial disadvantages and positioning of generation B. All the rest of this gibberish is really just a sideshow. This whole shitball developed because bankruptcy discharge was removed and the loan spigot got turned on full blast and law schools, being fundamentally economic actors, gulped it up, and, being sociological actors, phrased everything to make themselves look noble while doing so.

They’re basically misdiagnosing the cause, which makes their treatment suggestions unworthy of consideration.  This system has cancer and they’re claiming it’s dyspepsia.  I don’t care what the treatment is, it won’t work unless you attack the tumor.  We need surgery or chemotherapy, not some pills and observation suggestions.

Paul Horwitz at PrawfsBlawg appears less concerned with the working paper than the use of colorful language by the scambloggers.

A few things are clear from the content, and lack of content, in the ABA working paper. The “lost generation,” the kids who came out of law school over the past few years and found themselves saddled with huge debt and no jobs, are screwed. There is nothing in there for them.

The task force adopts the facile position that it’s counterproductive to moralize or blame, which will no doubt be applauded by those who deserve blame, including the ABA. Except the failure to do so avoids the hard task of understanding responsibility, cause and effect and bearing the consequences of the past.

There are parties at fault, and without calling them out for their fault, they get to enjoy the benefits of their selfishness and greed without consequence, as if it never happened. It happened. There is pain to be endured, and it should be meted out according to fault. That won’t happen. And with no price to be paid, there is no reason to suspect the same parties won’t try to spin this to their advantage again.

One of the most obvious, and critical failings, that the ABA has cranked out more lawyers than society can support, is ignored through some glib “public benefit” language, but while the concept sounds lovely and more than a little Utopian, it fails to deal with the issue of how they’re supposed to eat. It’s a glaring hole.

On the other hand, there are some good ideas in there for future law students, lawyers and the public. The paper suggests that law school doesn’t exist as a home for lawprofs to write esoteric articles, but to teach students how to become lawyers, though it doesn’t come out and clearly state that this has to change.

Is it enough? Is it better than nothing? Will it save the law schools and the legal profession from imploding, from being crushed under its own self-serving weight?  Is it a start?  Is it too little, too late?

Frankly, it’s more than I would have expected from the ABA, but then I’m neither a fan of the association nor a believer that it was capable of cleaning up this mess. So it’s better than I anticipated. But while it treats some of the symptoms, it’s not enough to cure the disease.

Do practicing lawyers have it in their heart to give a damn what happens to the profession, to those graduates of the past 7 or 8 years whose lives have been destroyed, to changes that will affect every lawyer going forward?  We need to. Read the report and have an opinion.



13 comments on “The ABA Working Paper on the Future of Legal Education

  1. Keith Lee

    The report is good in some respects, not so good in others.

    As you note, the “lost generation” is rightfully pissed off. While it would be nice for the ABA/law schools to say, “our bad,” that’s certainly not going to happen. Hence, the scamblogging crowd. While I completely understand the frustration with the ABA & law schools, at some point the “lost generation” needs to move on. I’m game for being pissed off – but use that frustrated energy and channel it into something constructive.

    Not more scamblogs, which just come across as juvenile, but stuff like Law School Transparency that is looking to make an impact on the profession in a legitimate way. Or communities and programs that help fellow members of the “lost generation” figure out how to dig themselves out of the hole they’re in, not just whine about your lot in life on the internet.

    I’m really torn on this issue. I get being pissed off at the institutions involved, but I can’t stand moping.

    1. SHG Post author

      Of course they have to move on, but they’re allowed to be pissed as well. Spending the rest of their lives angry and hurt isn’t going to solve anything, but their gripe is real. The two aren’t mutually exclusive.

      1. Keith Lee

        Right. I guess I’m saying that it’s time to move on. The scamblog scene has made all the impact it is going to make. Anyone still involved in scamblogs should move on to projects like Law School Transparency, or start their own. Posting SCAM SCAM LAW SCHOOL SUXS111!!!11 for the thousandth time is stupid.

        1. SHG Post author

          I agree that another day of screaming and whining isn’t productive. I guess I give it a pass this time because this working paper goes to the core of the issue, and it’s the right time to raise whatever issues (and in whatever manner, even if juvenile or “overly lively”) they have.

  2. BL1Y

    I think the first point on that list, that schools would rather use scholarship money to buy LSAT scores than to buy access for poorer students may be the result of my comment before the task force on exactly that point. Where do I cash in these prestiges I now have?

    Really though, my remark about schools preferring to buy LSATs rather than access was repeated a couple times by other people, but with the addition that US News was to blame. I understand that US News rankings do have influence, but at the end of the day it’s the law schools that place US News rankings above other concerns. It’d be nice for law schools to take responsibility for their decisions instead of trying to pass the blame on to someone else. It’s like blaming the Cheetos for being fat and having orange-stained fingers. I understand that they’re tempting, but they didn’t jump into your shopping cart.

  3. Jake DiMare

    You approach this topic with the assumption that there is a problem that needs to be solved. The collapsing demand for lawyers is a natural reaction to market forces well outside the control of lawyers. It is fun to see white collar professionals bear some of the burden poor people have been carrying around for 30 years though…

    1. SHG Post author

      Thanks for the simplistic view. All the complexities of deeper knowledge can make subjects like this so terribly confusing.

      By the way, I see you didn’t take my advice. You really should give it some more thought.

      1. Jake DiMare

        “Thanks for the simplistic view. All the complexities of deeper knowledge can make subjects like this so terribly confusing.” -Funny, that’s what I think every time you reply to one of my comments.

        Look, the ABA paper makes the same fundamental error the scammbloggers make: “Demand for lawyers is collapsing. Let’s blame the neanderthals in the education and education finance business for the collapsing demand for lawyers…Or blame them for being the slow to react to market force lackwits they’ve always been”

        In either case this error in attribution plays well into the hands of the real bosses…Who’ve actually been changing the face of the legal professional slowly for quite a long time. Remember in the 80’s when they started asking lawyers to share legal secretaries? I’m guessing no summer associate ever thought someday they’d be replaced by software that turns hours of research into a couple of keystrokes for a paralegal. And it marched on.

        But hey, don’t let me, a simple layperson, stop all you brilliant lawyers from avoiding the real problem of inequality.

        1. SHG Post author

          You misapprehend. You raise an issue, one of a great many. It’s not the issue, but only an issue, and one that implicates a great many other issues. Yet, you raise one issue to exclusion of all else. Part of my duty here, in not making people stupider, is not to let commenters do so either.

  4. Brian

    Demand for lawyers is dropping but that is only because the corporations who control way too many lawyers don’t need as many. But people getting pulled over tonight for drunk driving need a lawyer. Kids getting caught selling illegal drugs or entrapped, need a lawyer. Working class people who need a lawyer in civil court because they were sued by a credit card company need a lawyer. The need for lawyers remains high; there is just no cash to pay these lawyers nominally. If we can figure out how to pay legal representatives to represent the millions of people each day who need a lawyer, many law graduates can get going with their careers. The pay need not be $250-1000 per hour either. Law graduates are doing document review for $27 per hour right now and making a good living but it just isn’t what they went to school to do. People are getting sued each day and could use a lawyer to avoid a disaster but they simply don’t have one because they aren’t poor enough for legal aid and don’t make enough to pay someone themselves. We need more programs that will get these individuals lawyers even if it is for a single hearing or mediation to get them a deal that won’t destroy their lives. How many stories have I read where one lawyer is handling 20 criminal cases at the same time? These defendants deserve lawyers. That is not “GIDEON”.

    1. SHG Post author

      Be careful about oversimplifying a complex point in a comment. I appreciate your point, but it doesn’t lend itself to shallow treatment in a quick comment.

  5. Pingback: Lawprofs React to ABA Working Paper: But We ARE Special | Simple Justice

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