What’s Ailing American Law Schools
Last week, I learned that my law school is one of about a dozen sued in a class action for fraud in representing their graduates’ employment prospects. More law schools are expected to be named as defendants in the near future.
I am not sure how I feel about the lawsuit. If anyone is to blame for the totally erroneous perception of how well lawyers make out, it’s Hollywood (and, to a larger extent, popular culture itself). Don’t get me wrong, there are some very good reasons to go into law; it’s just that getting rich isn’t one of them. Even so-called “superlawyers” earn far less than specialists of comparable caliber in other traditionally lucrative fields (such as finance). White-shoe law firms, for their part, pay relatively well, but they are a cut-throat environment, and they treat associates like serfs. The overwhelming majority of lawyers, however, have modest incomes — at least relative to the effort and expense of acquiring legal education. Starting salaries for most are ridiculously low, hours are long, and career advancement proceeds at a snail’s pace. That, coupled with the crushing debt of student loans, means that most law school graduates look at a decade or more of living paycheck-to-paycheck.
Still, I find it unfathomable that law students wouldn’t know this until after graduation — or that a college graduate interested in going into law wouldn’t see through a pitch. You would think if someone was about to spend three years (almost four, actually) ruining his eyesight and his back, and borrow six figures to pay for it, it would behoove that person to devote a couple of days to research. I suspect this is one of those lawsuits where the actual allegations are a means to address a different problem, one that’s real and critical, but does not create a basis for a legally cognizable claim.
Fact is, whether or not law schools create too rosy a picture of post-graduation careers, legal education in this country has major problems. I suspect lawsuits like this will fail — but I hope they will trigger a shake-up in the ABA and the law school community.
Within the first semester or so, it became clear to my classmates and I that post-graduation career prospects for all but approximately top 5% of the class were going to be, shall we say, complicated. “No problem,” I thought, “If worse comes to worst, I’ll rent out a basement office somewhere, hang up my shingle and practice at a discount, claw my way up.” (I had a college professor, you see, whose mother became a lawyer at a time when female lawyers could only find jobs as secretaries — and she did exactly that, practicing out of a tiny storefront, answering her own phones and taking every client that walked through the door. Eventually, she built a solid and reasonably lucrative practice that had partners and employed several associates and staff.) But as months and years went by, it became increasingly apparent to me that, while this may have been a good plan in the late 1940’s, it was totally unrealistic in our times.
This is where my criticism of law school begins: with the fact that law schools do not teach students how to practice law. At all. What law schools do teach is how to think like a lawyer and how to analyze law — which are crucial, and absolutely necessary skills, to be sure, but alone woefully inadequate to enable one to actually work in the field. A student on the verge of graduation may be an impressive legal scholar and yet (unless he has had training elsewhere) he would not have the slightest idea of how to prepare simple pleadings, draft a basic contract or take a deposition. These skills are supposed to be acquired on the job. We can, of course, praise people who through sheer determination elbow their way into a part-time position that offers an opportunity to learn the ropes — but the thing is, I didn’t have to pay for all that training. In fact, I was the one who got paid by the firm that taught me to practice law — and as I became more skilled and experienced, I got raises. Law school provides an essential foundation for legal expertise — but at three years’ length and $40K per-year cost, it is outrageously overpriced.
Once you’ve graduated, the next hurdle before you can practice is the Bar Exam. It’s common knowledge among 3L’s — as we call law school seniors — that even a straight-A student needs to take one of those commercial preparatory courses, such as BarBri, to pass the Bar. I can attest that BarBri is excellent, and so is PMBR (a companion course that focuses on the structure and philosophy of the multi-state portion of the exam). Incidentally, BarBri is taught by law school faculty, but in a very different format, one that’s actually designed to impart knowledge. But, there is something here that should ring alarm bells for the law school community: if an essential chunk of your legal education comes from a six-week commercial crash course, it’s a clear indication that something is very wrong with law school’s curriculum and teaching methods.
And what about those methods? For a while, teaching law school was a form of semi-retirement for highly respected lawyers who have had illustrious careers in the field. I was lucky to go to law school at a time when a couple of these very old men were still around, still passing along crumbs of knowledge of what legal work is really like. But by now, they have almost completely been replaced by a new crop of law school faculty — career scholars. These people have stellar academic credentials, but no experience practicing and no interest in practice. Many of them aren’t even admitted anywhere. And, they teach law as one would teach comparative literature — from a strictly academic perspective — despite the fact that the overwhelming majority of students intend to go into practice.
These professors are particularly fond of an old, 19th-century teaching format known as the Socratic Method — which is just a fancy way of saying it’s supposed to be a seminar. Circa 1850, when this format was developed at Harvard, your usual law school class could fit around a conference room table. The format is ill-suited, however, to today’s hefty class sizes and in practice, translates into little more than intimidation and petty classroom tyranny. Professors pick on students and interrogate them about the most rarefied points of law, while failing to impart basic information that would support intelligent answers.
There is also a blatant lack of feedback. Every course has but one exam, and students never get their papers back — so if you do worse than you expected, there is no opportunity to analyze where you went wrong and why, or to learn from your mistakes.
The farther along I got in my law school career, the more apparent became the chasm that separated legal education from the actual practice of law — and the more irritated I grew at having to spend astronomical amounts of money on a very repetitious academic exercise.
So what should law schools do? I would overhaul legal education along the following lines:
1. Teach some real-world legal skills, forgodssake. In the first year, teach the same basic areas of law as now, but create a greater focus on logic, rhetoric and legal analysis. In the second year, concentrate on practical skills: taking depositions, drafting pleadings and motion papers, and trial preparation. The third year? Frankly, I don’t think there is a need for a third year. If we do keep it, the third year should focus on Bar Exam preparation and increasing the student’s store of legal knowledge.
2. Make having a career in practicing law (I’d say, 10 years, minimum) a requirement for all law school faculty. Professors who have no interest in the practice of law can go teach political science; no matter how many Ivy League degrees they have, they are unqualified to train lawyers.
3. Reform the teaching method to fit current class sizes. “Stimulate discussion” by all means, but those discussions should be based on actual knowledge, which faculty should have the responsibility to impart.
4. Create a system of feedback, where students take two or three exams in each semester-long course and have an opportunity to learn from their errors.
But as far as misrepresenting career prospects — there is a definite limit to how much spoon-feeding law schools should be required to do. One crucial factor here is the psychology of the typical law school entrant. When people hear “ten percent of our graduates go on to clerk for the US Court of Appeals” or “forty percent of our graduates earn six-figure starting salaries”, they instinctively place themselves in those percentages; no one plans to be mediocre. So I don’t know how effective it will be to require law schools to say, “fifteen percent of our graduates end up never working as lawyers” or “twenty percent of our graduates eventually ask for forbearance on their student loans”. However, if radical changes were made to how law is taught in law school, to make legal education more useful in the market place, I believe it would do law students a world of good.