An ABA document on lawyer training in the United States considers if courses have become too academic.
Just weeks after our own Legal Education and Training Review (LETR) published its report, a stimulating document on lawyer training has been published by the American Bar Association (ABA). It addresses the critical problems facing the future of law schools in the US, which I have mentioned before. Much of it is specific to the American approach to law school funding – put bluntly, eye-wateringly high fees which students are no longer able to shoulder, leading to plummeting student registrations – but there is a good deal to entertain the general UK reader. Interestingly, whereas there were criticisms that the LETR report did not deal adequately with student debt, here it takes centre stage, maybe not surprisingly given that a typical US law student debt amounts to well over $100,000.
Among the tantalising topics raised by the new report is this one: does a law school exist to teach you how to think, or how to get a job? The authors fear that law schools have drifted too far towards the thinking side. ‘Law schools have long escaped pressure to adapt programs or practices to customer demands or to the pressures of business competition.’ The report complains that law faculty culture is one of the factors inducing high costs and resistance to market-oriented change, ‘a substantial part of the organisation consists of people who have sought out their positions because those posts reside largely outside market- and change-driven environments.’
It points out that current law faculty culture includes the following two statements: ‘A professorial position should involve long-term security, and tenure means very strong and prolonged security.’ ‘Scholarship is an essential aspect of a faculty’s role.’ One of its recommendations to law faculty members is that they should ‘Individually and as Part of a Faculty, Reduce the Role Given to Status as a Measure of Personal and Institutional Success.’
The report is critical of the ranking of law schools, which strongly affects consumer choice: ‘…little of the information used in ranking formulas relates to educational outcomes or conventional measures of programmatic quality or value.’ The authors point out that since one particular ranking is based in part on law school expenditure per student, it encourages increased expenditure to improve ranking, and so leads to further increases in price. As for the funding structure itself, they have a number of criticisms, but the most memorable is that weaker students, who do not receive scholarship (i.e. free or nearly free tuition) and who have less chance of finding a job afterwards to work off their loans, contribute disproportionately as a result to the funding of the stronger students’ education.
In the US, the ABA has a role in accrediting law schools. While recognising the ABA’s role in keeping up standards, the report also acknowledges that this harmonisation stifles innovation and drives up costs. It specifically says that the standards which require 58,000 minutes of instruction time and 45,000 minutes of attendance in regularly scheduled class sessions (yes, the current standards are really that detailed) should be eliminated or substantially liberalised. It calls on regulators to ‘Construct and Evaluate Proposals to Reduce the Amount of Law Study Required for Persons to be Eligible to Sit for a Bar Examination or be Admitted to Practice.’
The most interesting aspect for us is the question of whether law schools should aim just to turn out lawyers, or should also educate people who will perform more limited roles in the delivery of legal services. ‘The relatively high cost of the services of lawyers has facilitated the use (or proposed use) of persons who have not received a J.D. [law degree] to deliver lower-cost legal services. Businesses increasingly use persons other than admitted lawyers, e.g., for compliance work and for expertise in the human resources field. For individuals who cannot afford lawyers, the adaptation has been slower, but the extensive use of law students with special licences reflects one approach to broadening the availability of low-cost service.’ So, among the recommendations to regulators is to ‘Authorise Persons Other than Lawyers with J.D.’s to Provide Limited Legal Services, Whether Through Licensure Systems or Other Mechanisms Assuring Proper Education, Training, and Oversight.’
It is a shame that this radical rethinking has been brought about by catastrophic market conditions, rather than considered self-reflection. That tends to bolster those (with whom I disagree) who say that professionals should not be left to regulate themselves, since otherwise they just raise their own status and disregard the market. It also distorts the recommendations towards the problems thrown up by the current crisis, rather than considering what general restructuring might in any case be advisable in the long term.
But all reflection is good reflection. And the next step, of course, is to see which of its recommendations will be followed by the various players in the US market.
Jonathan Goldsmith is secretary-general of the Council of Bars and Law Societies of Europe