The Court is activist when it acts on its own discretion rather than on the basis of a clear dictate of law.
Dean Morriss’ essay, “Reasons to Be Cheerful: The Future of Legal Education,” is a welcome addition to the growing literature on what the present and future hold for law schools. He rightly emphasizes the role of competition and the need for greater diversity. And the stakeholders at Texas A&M University School of Law are indeed fortunate to have secured an energetic and creative new leader.
I am bit less cheerful about the overall situation. We essentially have one model of legal education in this country and it is largely based on the Yale Law School. It is a model that emphasizes the training of students to become either law professors or lawyers at elite law firms or non-governmental organizations.
The model requires the subsidization of JD’s through large Master of Laws (LLM) programs for foreign students and loads of alumni giving. The model “works” for the few schools in this magic circle, and will continue to flourish as long as high-paying law firms continue to hire their graduates.
But what might be termed the “New Haven model” does not work for the rest of the country. In part because of the pressures created by U.S. News and World Report and other listings, although this phenomenon was well in place before those listings were developed, the overwhelming majority of law schools emulate this model even though it is a complete misfit for the needs of their students and the individuals and entities that will come to need their legal services. These schools do this because applicants have very little information about where to apply other than the schools’ general reputation, which is a function largely of how they are perceived by other schools and faculties.
An ambitious young dean who wants to improve the reputation of his or her school will typically subsidize above-median-LSAT applicants, grow the LLM program, and put Yale Law graduates or wannabes on the faculty. The school is likely to move up a few notches in the reputational calculus, which pleases the school’s trustees. Despite this improvement in relative status and trustee approval, however, the school will in fact no better serve most of its students, who will have difficulty finding work and will not have the skills to practice on their own. They will also not be in a better position to serve clients.
This non-virtuous cycle is kept in place not so much by the requirements of the American Bar Association or state bar associations but more directly by state court rules, dating back to the early 1900s, which require three years of legal education at an ABA-approved school. This is a level of state regulation that does not meet the needs of most law students or most people and entities that need legal assistance. State courts have it in their power, without having to navigate the political shoals of the ABA and the Association of American Law Schools, to reduce the costs of legal education and prod law schools to do a better job training students to become lawyers.
The proposal that Verizon general counsel Randal S. Milch and I have advanced would urge state supreme courts to shift to a standard of only two years of required (and specified) law school courses and one year of a paid public service internship (with any legal employer) to sit for the bar examination and then become licensed to practice law. Students meeting this standard would be licensed but would not have received a JD.
Without the help of the law’s thumb on the scale, law schools would then work harder to “earn” the third year of tuition by offering competitive training opportunities that would truly be valuable enough to warrant another year’s debt and foregone income.
We need a real market for the third year and state supreme courts have it in their power to provide it.