Sunday, April 22, 2012

Overcoming the "Langdellian Bargain": Dual Rankings for Law Schools in U.S. News

A few weeks ago, I made a couple of posts on the Langdellian Bargain here and here.  Here is a short summary: 

In Comparative Histories of Professional Education: Osler, Langdell, and the Atelier, Richard Neumann traces the origins of the Langdellian Bargain back to the beginning of modern legal education in the nineteenth century at Harvard. Part of Langdell’s revolutionary approach to legal education was "that masses of students could be taught law economically in large classes. . . .  The only substantial investment in such an enterprise would be the library. Personnel costs would be low compared with revenue because of the large number of students in each teacher’s classroom. Teaching would be so financially efficient that a profit could be generated each year." While the profits were originally kept by the law school, today they are shared by the university and the law school. This bargain assured the law school’s security within the university structure. Neumann notes that "Among the benefits of the bargain to the faculty are leniency, compared with other parts of a university, in teaching requirements measured by the time needed to teach casebook courses, freeing up a substantial amount of faculty time for scholarship that is supported, for the most part, by tuition money." Similarly, he states, "The Langdellian bargain settled the financial arrangements through which legal education would enter universities. Large numbers of students would be taught, with little capital investment, and in most years law school revenues would exceed teaching expenses. That would provide resources for faculty to do scholarship on whatever subjects interest them."

While a number of law schools are trying to break out of the Langdellian Bargain, it still largely controls legal education today.  One of the impediments to overcoming the Langdellian Bargain is the U.S. News Law School Rankings.  These rankings reward law schools that are based on the Langdellian Bargain, and they penalize those law schools who want to be innovative.  For example, the reputation rankings in U.S. News are based more on faculty scholarship than on teaching quality.  Because law students rely heavily on the U.S. News rankings in making their law school choice, it is hard for law schools to ignore U.S. News.

Many throughout the legal academy have criticized U.S. News for the great harm it has done to legal education.   Many critics of the U.S. News rankings have advocated eliminating them.  While I agree that this would be a good solution, it is unlikely to happen. 

I propose that, in the alternative, U.S. News employ dual rankings for law schools: A ranking for research schools and a ranking for practice schools.

This is not a radical proposal.  U.S. News already does this for medical schools with two rankings: Best Medical Schools: Research and Best Medical Schools: Primary Care.   All 114 medical schools that provided data to U.S. News are ranked in both categories.  The factors (measures of quality) for the two rankings are different, with the research ranking using factors that indicate strong research programs and the primary care ranking using factors that emphasize educating primary care physicians.  For example, peer evaluators complete two separate assessments--one of research programs and the other of primary care programs.   Similarly, there are two separate assessments for residency directors--one sent to a sample of residency program directors in fields outside primary care and the other to residency directors in the fields of family practice, pediatrics, and internal medicine.  You can see the other differences between the rankings here.

There is no reason that the same thing can't be done for law schools.  All law schools would be ranked separately into two categories: Research Programs and Practice Programs.  In fact, it would probably be easier for law schools because U.S. News could keep the same basic ranking factors.  Evaluators (peer assessment and assessment by lawyers/judges) would do two assessments for all law schools--one for scholarly programs and the other for practice programs.  The rest of the factors could remain the same, but the weight of the factors would change depending on the ranking.  For example, the bar passage factor should receive considerably more weight on the practice program ranking than the research program ranking.  Also, I would change the employment rates for graduates for the practice program rankings to count only those graduates working in jobs for which J.D.s are required.

I believe that law schools have two missions.  The first one is the traditional one to produce scholars who can further our knowledge of the law and beome society's leaders.  The second is equally important--to produce practice-ready attorneys who can provide legal services to society.  Having dual rankings of law schools would further both these missions.

(Scott Fruehwald)

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