Sunday, March 11, 2012

A Novel Approach To Legal Education's Problems: The "Langdellian Bargain"

There has been a great deal of discussion concerning the problems in legal education over the last few years. Many recent law school graduates are not getting jobs, and they are facing massive loan repayments due to the high cost of tuition. Among the various reasons that have been mentioned for these problems are the easy availability of educational loans, the loss of government funding of legal education, spending on fancy new buildings, high faculty salaries, and the economic meltdown.

Richard Neumann has added a novel concept to the causes of legal education’s problems, which he calls the "Langdellian Bargain" In Comparative Histories of Professional Education: Osler, Langdell, and the Atelier, he traces the origins of law schools’ current structure back to the very 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, and the result would be professional learning because students in a Socratic class would do more than passively receive information, as in a lecture. 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."

Part of the sharing between law schools and universities is justified by the fact that universities pick up some of the law school’s costs. However, as Neumann relates, "When a law school’s faculty, or even its accreditor, asks to see detailed financial records showing how much of the university’s share actually pays for the law school’s overhead costs and how much is treated by the university as profit, the university’s response rarely includes hard evidence that would clarify the matter." The law school does not press the inquiry because, as mentioned above, the law school and its faculty benefits from the Langdellian Bargain. Neumann declares: "Law faculties today still consider themselves bound by and benefiting from this bargain, even though a transcript of a contemporary doctrinal class would typically reveal much lecturing and little Socratic questioning (which would have disappointed Eliot)."

Based on the above, Neumann makes the following key point: "Whenever change is proposed in legal education, the threshold question is whether it would be consistent with the Langdellian bargain. If the proposal would significantly reallocate resources — either within the law school or between the law school and the university — in a way that would alter the bargain, the proposal fails because no one will voluntarily give up what the bargain has provided." In other words, resistance to change has become institutionalized in law schools!

Neumann’s concept of the Langdellian Bargain is likely to prove controversial. However, his point is very troubling: Law schools are resistant to change because change does not benefit the law school or its faculty. The problem is that law schools should exist mainly to benefit the students and society at large.

What law schools need is a greater emphasis on teaching and a refocusing on of the types of courses they teach and how they teach them. There has been resistance in bringing legal writing courses, clinical courses, and other skills courses fully into the curriculum and to make teachers of these courses equal partners in the law school. However, it is in these courses that our students learn how to be lawyers, rather than just academics. We need to make law schools the servants of twenty-first century students..

This does not mean that everything about the law school must change. As I have mentioned before, scholarship should remain an important function of the law school because scholarship advances knowledge and thus serves society. However, we cannot lose sight of law school’s central role–educating lawyers to serve clients and society.

(Scott Fruehwald)

P.S. I discussed Neumann’s article generally law week here.

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