Sunday, November 20, 2011

Institutional resistance to legal skills training presents an opportunity for change for schools willing to become that "oddball place."

This article from Saturday's New York Times, What They Don't Teach Law Students: Lawyering, nicely summarizes the historical bias law schools have toward skills training and why from an institutional standpoint it's so hard to change.  In essence, a law school's prestige is what attracts the best applicants and it's that selectivity that creates job opportunities upon graduation. Traditionally, a school's prestige has hinged upon the quality of its faculty's publications. Thus, it's not so irrational that the legal academy values scholarship above all else including teaching students the nuts and bolts of law practice. Indeed, the unspoken rule within most of higher education is that time spent teaching students is time that would be much better spent pursuing scholarship that has "impact."

Likewise it's hard to claim absence of merit for the view that giving students access to the "best" scholars provides the "best" education.  As a source quoted in the NYT's article said: “Students want renowned scholars to teach them, period . . . .  They want to learn from the best and brightest.”  Even those who advocate for more skills training must concede that teaching students how to "practice" law must begin with a solid foundation in legal theory.  Thus, there are several institutional forces at play that suggest it is highly unlikely the traditional model of legal education is going to change in a substantial way anytime soon, especially among the top ranked schools and those that aspire to be.  The expanding number of law schools competing for a shrinking pool of applicants and the role of "peer reputation" in the USNWR rankings serve to reinforce these status quo values.

Nevertheless, employers are asking even the best schools to spend more time teaching practical lawyering skills and the schools are responding.  But the top-tiered schools are so heavily invested in the traditional "research institute" model of legal education that a major paradigm shift won't happen anytime soon.  On the other hand, it means lower ranked schools that are not as heavily invested in that model have an opportunity to create a unique identity within a very crowded field that could see an "industry" shake-out in the coming years. 

Schools that can successfully compete in the USNWR rankings game based on traditional measures of institutional prestige have too much to lose to risk becoming that "oddball place," to quote a law professor interviewed for the NYT article.  But for other schools, that might be the key to surviving the "coming crunch for law schools." The time is ripe for lower ranked schools to invent an alternative to the prevailing educational paradigm by directing the bulk of their financial resources toward skills training rather than faculty scholarship (and hiring experienced practitioners to teach rather than relying primarily on those who have "never practiced law for a single day").

It's an entrepreneurial gambit that might pay-off big time to the extent it allows a lower ranked school to carve-out a niche within a very crowded field of law schools that all look pretty similar.  These schools have little to lose by withdrawing from the USNWR beauty pageant but much to gain if they can reinvent themselves in a way that assures survival by providing to students employable skills.  Consider, for example, this California school that is marketing itself as a trial preparation institute.  Other schools may also have to become that "oddball place" if they hope to compete for tuition dollars among the 200 plus (and growing - here and here) law schools chasing a shrinking applicant pool (and here).


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"The time is ripe for lower ranked schools to invent an alternative to the prevailing educational paradigm by directing the bulk of their financial resources toward skills training rather than faculty scholarship . . . . an entrepreneurial gambit that might pay-off big time . . . ."

Interesting comment, one that proves itself false. The alternative was "invented" and has been in use for some twenty-five years. That you, like many others, haven't noticed helps render the "survival assur[ance]" a bit hollow. The monopoly maintained by the tenured faculty who control the ABA Section on accreditation, coupled with the pervasive view of "ABA" accreditation as the "Good Housekeeping" seal, removes any necessary connection between "build[ing] it" and being assured "they will come."


Posted by: Andy Starkis | Nov 21, 2011 4:07:15 PM

If law schools were to start hiring FT tenure track professors with practical skills, then things would change. Until they do so, I am afraid that things are going to stay the way that they are. Profs who teach legal skills classes, legal writing and legal research are usually not on tenure track and are the lowest paid. They are second class citizens in most school and as a result, their students are getting a second class education.

Posted by: Mitchell Rubinstein | Nov 20, 2011 5:12:13 PM

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