Thursday, August 2, 2012

An Inconvenient Truth: The Crisis of the American Law School by Paul Campos

It would be an understatement to say that Paul Campos is the most controversial figure in legal education reform.  His blog Inside the Law School Scam has been idolized by disgruntled law students and graduates and highly criticized by much of the legal teaching profession.  I have criticized his blog a number of times on this blog for his tone and his frequent exaggerations.  However, I have noted that, under the invective, there has been a great deal of truth.

Now, Campos has summarized his law school criticisms in a law review article that he has posted on SSRN.  I find his article to be very troubling.  The reason for this is because he backs up his criticisms with facts and statistics, which are for the most part unassailable.

His thesis is: "Private law school tuition increased by a factor of four in real, inflation-adjusted terms between 1971 and 2011, while resident tuition at public law schools has nearly quadrupled in real terms over just the past two decades.  Meanwhile for more than 30 years now the percentage of the American economy devoted to legal services has been shrinking. In 1978 the legal sector accounted for 2.01% of the nation’s GDP: by 2009 that figure had shrunk to 1.37% -- a 32% decrease."

"These two trends are not mutually sustainable. If the cost of becoming a lawyer continues to rise while the economic advantage conferred by a law degree continues to fall then eventually both the market for new lawyers and for admission to law school will crash. . . . The ongoing contraction in the employment market for new lawyers has combined with the continuing increase in the cost of legal education to produce what many now recognize as a genuine crisis for both law schools and the legal profession." 

Professor Campos sets out in meticulous detail the many causes of the rise in law school tuition, including lower student-faculty ratios, higher faculty compensation, the proliferation of clinics, new buildings, the growth of administrative staffs, the addition of legal writing programs, and self promotion.  He concludes that "while in the long term law schools will pay the price for being unable to break free from the vicious cycle of having to constantly increase revenue merely to stay in the same place relative to their competitors, at present that price is being borne most directly by law school graduates, who year after year pay more and more for an educational credential whose real value has been declining for some time now."

Campos next argues that law school costs too much because of market factors: "Law school now costs too much for two reasons: because there aren’t enough jobs for lawyers, especially new lawyers, and because too many of the legal jobs that do exist do not pay enough to justify incurring that cost. This combination of circumstances is a product of both long-term changes in the market for the providers of legal services, and in the way law students finance their legal education. The result has been the creation of a class of deeply indebted, underemployed law school graduates."  He also emphasizes the large debt that most students have at graduation and their frequent inability to repay this debt.

His main solution to the above is that the cost of legal education must be reduced.  He declares: "Cutting tuition does not require any sort of intellectual or technological breakthrough: the factors that have driven tuition up so drastically are both well-understood and in no way unalterable. Reducing the number of law school graduates is even less complex: it is becoming obvious to all but the most self-interested actors that a good number of the law schools that now exist in America will need to close in the coming years, while quite a few others will need to become a good deal smaller."

More specifically, he states, "Tuition can be reduced drastically through the simple expedient of returning to the cost structures that existed at law schools until quite recently."  He adds, "the ABA’s accreditation regime needs to be relaxed, to allow schools to employ larger numbers of adjunct faculty, given that competent adjunct faculty serve the valuable dual role of holding educational costs down, while conveying useful information to law students regarding the actual practice of law."  Other proposals include reduction in tenure and tenure-track faculty, resumption of administrative duties by law faculty, reducing the level of library spending, foregoing building upgrades, reducing cross-subsidies of other university programs, and reducing clinical education through more externships.  A more radical proposal would be to eliminate the third year of law school.  An even more radical suggestion is to make law an undergraduate degree.

It is hard to disagree with Campos's thesis.  American legal education is in a crisis due to high tuition, the lack of good jobs, high student debt, and an overproduction of lawyers.  As I have said before, we need to break the structural constraints of the Langdellian bargain (see also here).  It is also hard to dispute his reasons for the high cost of tuition, although I would add that some of these causes, such as the addition of legal writing classes and clinics, have been both beneficial and necessary to legal education reform.

While I agree with many of his suggestions for change, I disagree with some of them.  This stems from the fact that I see two crises in legal education, while Campos sees only one.  In addition to the structural crisis that Campos writes about, I (and many others) see a crisis in how we educate law students.  We should educate law students to be practice ready, rather than graduates of an academic graduate program.

Consequently, I disagree with Campos's proposal that law schools cut down on clinics in favor of externships.  I believe that law students get their best training in law clinics where they are supervised by expert teachers of clinical skills.  I do not trust externships.  The attorneys that provide the externships do not know anything about teaching law students.  (Teaching is a skill that needs to be developed. (see here))  In general, I think law students need more practical training with teachers that are trained in providing practical training.

I also disagree with Campos's proposal to eliminate the third year of law school.  I do think that for the most part the current third year of law school is a waste of time and money.  However, I do not believe that students would graduate with the skills they need to be successful attorneys after only two years.   Instead, law schools should use the third year to better prepare students for practice, like some law schools, such as Washington & Lee, are already doing.

Finally, I disagree that law should become an undergraduate subject.  Many law students are very unprepared for law school as it is; I can't image what it would be like if law students came in with no undergraduate training.

In sum, Campos has raised an inconvenient truth--that law schools cannot continue along their present path for much longer.  While I disagree with some of Campos's solutions, other of his solutions, particularly fewer administrators, less publicity, and fewer new shiny buildings, could help.  In addition to these, I would like to suggest loosening ABA rules to allow for different types of law schools.  We need law schools that offer more practical training at a cheaper price.  All law schools do not need to fit the same model.  Similarly, if law schools could ignore the U.S. News rankings and become more student-centered, tuitions might come down.  (Law schools wouldn't need to spend money just to move up in U.S. News.)

(Scott Fruehwald)

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