February 11, 2011
Is the Writing on the Wall to Change the Monopolistic Model of Practicing Law in the US?
In Redesigning the American Law School [SSRN], David Barnhizer (Cleveland State) writes
Dramatic change is on the way for law schools and it is coming faster than they might imagine. The economic forces in play are coming from every direction and will prove irresistible. The writing is on the wall for law schools if they bother to read. Law schools are likely to find they share the need with other industries for a combination of actions that include downsizing of staff and reduced student enrollment, and development of alternative educational offerings other than the traditional law degree.
Why? Barnhizer explains:
Implications for the immediate future for law schools include the fact that there is no discernible “magic” to the existing structure of legal education in the US. While the schools have been largely insulated from public scrutiny by their connection to the ABA and status as parts of the university institution, this protective “covering” is likely to be removed over the next five to ten years. The result for many law schools is that unless they learn to adapt intelligently to the changed conditions and still declining demand for lawyers as that job is traditionally conceived, some law schools will shrink dramatically. Others will disappear in the face of hardened and unforgiving competitive conditions.
Nor are US law schools well-positioned to prove their quality or necessity in the face of knowledgeable critics. There has been no comparative “value-added” analysis of the relative benefits gained by the American model in which law graduates are required to complete a university degree and then take a three or four year graduate program in law school prior to sitting for admission to the bar. There is also no empirical basis that establishes the quality of services provided Americans by lawyers as a body in exclusive control of the provision of legal services. Pressures for dramatic changes are therefore likely to come at law schools from both the public and private sector.
Barnhizer's article is best economic analysis of the legal academy under the 21st century "new normal" I have ever read. He observes that
'Law schools are having rapidly increasing problems 'selling' their 'products' to potential employers/purchasers" while requiring "more than 40,000 new students each year to 'feed their habit'”.
That “habit” is the preservation of an archaic form of graduate level education whose structure, development and monopoly as the means to gain entry into the lawyers’ guild was a convenient accommodation to universities in need of money. Law schools attached to universities offered a cheap form of instruction from which universities were able to profit. This was a marriage with the organized legal profession whose members were happy to accept the prestige associated with the university degree.
In the face of budget cutbacks, some law schools are feeding their "habit" by increasing their enrollment of students above their historical levels to generate additional tuition revenue while employment opportunities for their "products" are declining. Case in point, the University of Cincinnati College of Law. The irony here is that Barnhizer's article leads off with an economic analysis of Ohio to illustrate the thesis of his article. He warns "Some hard decisions are necessary in Ohio and the surrounding states and it would be far better to engage in intelligent strategic planning that “gets ahead of the curve” than to be the blind and rudderless victims of the economic, accreditation and competitive trends."
What does "getting ahead of the curve" mean? First according to Barnhizer:
Among the most important effects that we are already beginning to see is changes in the level of tolerance that has allowed law schools, the ABA and state-by-state Supreme Court monopolies over legal education. The ABA’s role in accreditation has been questioned. Whatever its historical justification in a legal environment where law practice was essentially local and small scale, and access to practice information often limited and esoteric, the simple fact is that law practice in an Information Age has far transcended localized boundaries.
Second, educational specialization at the law school level. Although Barnhizer does not point to medical education as an example, law schools can get "ahead of the curve" by competing with each other for survival like medical schools do. If you want to be a heart surgeon, X, Y, and Z medical schools are where an aspiring heart surgeon hopes to attend. If you want to practice intellectual property law, A, B or C law schools is where you want to attend because the curicumulum meets the aspiring IP attorney's educational requirements.
It remains to be seen if the legal academy reads the "writing on the wall." My hunch is the entrenched tenured faculty will do everything possible to maintain the status quo as long as possible. As Barnhizer writes:
[L]aw schools are not structured or managed in ways that allow easy adaptation or downsizing.
There is no credible data that 4 years of undergraduate education better prepares a student for law school. This requirement is unique to American and Canadian law schools. Australia and some European countries have no undergraduate prerequisite. Other professions have successfully merged their undergraduate and professional degree requirements. For example, physical therapists can get their bachelors and masters within 5 years. This same timeline could work well for a combined bachelors and juris doctor. I disagree as being unnecessary, however, the call to create specialized law schools. Already, most, if not all, mid to large law schools have such a large curriculum that a student wishing to specialize in a given area of law could.
Posted by: CL | Feb 13, 2011 7:22:49 PM
Here's the part of the article that I suspect gets old Joe really excited:
"This also would mean there would be no necessity to supply, maintain and staff large scale and expensive research libraries of the kind now found in most law schools."
So, all those featherbedding academic legal reference librarians that J.H. so envies and despises will finally get what's coming to them, eh?
Posted by: Rob T. | Feb 11, 2011 6:22:00 AM