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January 17, 2012

Wall Street Journal Post on “Killing all the Law Schools”: A Reply

by dan rodriguez

My able colleague, Prof. John McGinnis and his co-author, Russell Mangas, have penned a thought-provoking essay in today’s Wall St. Journal.  Some thoughts in response (noting that I welcome a response by the authors to be posted separately on this blog).

So, what “McMangas” offer is essentially a brief for the standard European model of legal training, that is, an undergraduate degree in law combined with a year apprenticeship following graduation.  In a nutshell:  Saves costs, provides adequate education in the subject of law, and reduces legal fees.

Let us pry loose these claims:  “The high cost of graduate legal education,” McMangas writes, “limits the supply of lawyers and leaders to higher legal fees.”  Causal claim, certainly not proven.  And not especially plausible.  It is only in the last couple of years that law school applications have dipped; and law school spots have remained steady.  For better or worse, the supply of new lawyers has held fairly steady.  Legal fees, by contrast, are shrinking — which is the essential point, after all, behind growing calls for major reform in legal education and, at the very least, greater transparency by law schools with regard to employment opportunities.  The causal connection between law student demand, space in law school, supply of lawyers, and legal fees is, to say the least, a complex one; we need not, and in response to McMangas, I won’t simply stipulate the connection.

There may well be, of course, other sensible reasons to reduce aggregate student debt.  But the linchpin claim that widescale adoption of the European model is a panacea for high legal fees and limited access to legal work by middle and sub-middle class is not well supported in the op-ed.

But let’s take the McMangas claim on face value for the moment.  What would this reform do to legal education generally?  Not much good, from my perspective.  The legal profession is becoming considerably more, rather than less, complex over time.  Appeals to, as they write, the “ancient common law” is rather quaint.  There is, to be sure, a core and a canon which every well-trained lawyer should have exposure to, and two years may do the trick.  But there is much beyond this core, as lawyers grappling with a technologically sophisticated, globally interdependent, socially and economically diverse legal and business world well appreciate.  Lawyers tell us in the academy that we are not doing enough to get our students ready to practice.  They insist on greater skills training, more clinical experience, more integrated law/business curricula, and opportunities within the post-graduate structure to gain on-the-job practical experience through internships and externships.  And what McMangas has on offer is tossing that aside to be replaced with two years worth of presumably in-class exposure to the “ancient common law” and a few additional goodies.  Leave aside the self-interest of the professiorate.  That’s not what lawyers tell us that they need.

Moreover, that’s not what lawyers in Europe are telling us either.  The move on the Continent and across Asia and Latin America toward the American model of post-graduate legal training is relentless.  UK and a small group of countries in the Commonwealth are holdouts, but they, too, are adapting to post-graduate models through the expansion of LLM programs and the attachment to foreign universities through collaborative arrangements.  The two-year undergraduate model is going the way of the dinosaur across the world just as McMangas commend it to us here.

Back to the merits of the subject at hand.  What law schools like Northwestern excel at is the ability to build upon the academic training and professional experience of talented students.  The vast majority of NU law students have two or more years of work experience before they come in the door; and they, of course, have at least an undergraduate degree with strong academic credentials.  This high academic skillset, combined with pertinent life experience, makes better law students and better lawyers.  Don’t take my word for it; ask the law firms and corporations that seek out these seasoned law graduates.   What McManus sees as an elaborate restraint of trade, I prefer to see as the market telling us in unmistakable terms that 21st century America requires professionals who bring more experience, more training, and more education to the table.

In addition, Northwestern has a pioneering interdisciplinary focus, with a faculty filled with folks with advanced degrees and a commitment to just the sort of richly textured, cross-field focus that McMangas associate with undergraduate, rather than post-graduate, training.  Law schools filled with, and fueled by, expanding attention to cognate fields and alternative methodological approaches is the wave the present.  “Killing all the Law Schools” means killing these bold, new ventures.  Are we so sanguine about the preparation of our college juniors and seniors and about the structure of university education that we would trade exposure to highly qualified (and, yes, highly paid) law school educators for educators with more modest endeavors, objectives, and resources?

And what of the LLM substitute?  Better than nothing, but less than the current model, a model which provides professional, systematic training with the option of specialization in areas such as tax, international/comparative law, and intellectual property.  The notion that, instead, LLM programs would be the location of comprehensive professional training seems implausible.  McMangas want us to take on more or less face value that UK lawyers with such training are the envy of the world.  It’s not clear to me that there are even the envy of the UK.

One other point about legal services to the poor:  The U.S. leads the way in the provision of low-cost and occasionally pro bono legal services (which is not to say that we do nearly enough to address this growing need).  Law schools — yes, post-graduate professional schools — have been at the forefront of this.  The financial situation of professional schools, along with the capacity in the educational structure of these schools, enable students, when properly incentivized and supported, to work on providing these services.  The rise of live-client clinics is a principal innovation of the past few decades; it has been enabled by the tuition paid by students (along with targeted fundraising and some amount of governmental subsidy).  What would McMangas expect would happen with such services in this new regime of streamlined legal education?  The assumption that law firms would subsidize these efforts through lower fees and pro bono opportunities is a heroic one; indeed, it certainly didn’t happen during the long period in which tuition, especially at public law schools, was much less.

What, however, of the rising cost of legal education?  This is the large elephant in the room and McMangas is right to draw our attention, albeit through a seriously flawed prescription, to this difficult fact.  What law schools can and must aspire to are solutions that address these costs while, at the same time, maintaining an educational structure that responds proficiently and efficiently to the demands of our complex legal and business environment.  Greater attention to cost effectiveness is undoubtedly required.  But the answer is better training, not less training.

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