Sunday, February 22, 2015

Former Dean Calls for Radical Changes in Legal Education

Law Schools: Reform or Go Bust by James Huffman (Newsweek).

Dean Huffman writes, "To head off the crisis, legal educators should be talking about an entirely new business model. That the existing model has failed should be evident to any thoughtful observer. But because most law faculty view themselves as public servants and legal education as a public good, they reject the very idea that legal education can even be thought of in business terms."

He adds, "The longer legal educators remain in denial about the true magnitude of the financial crisis they face, the more devastating will be the crash. It should be obvious to even the casual observer why the existing business model is broken for all but the well-endowed, elite law schools."

"The Failed Business Model: Through the first half of the last century law schools relied on small faculties to teach large classes in facilities consisting of a few lecture halls, offices and a library. Today large faculties teach small classes in elaborate facilities housing high tech classrooms, court rooms, cafes, lounges, suites of faculty, administrative and student organization offices, computer labs, libraries and even workout rooms in a few schools. Faculty teach not only smaller, but fewer, classes, with frequent sabbaticals and research leaves. Little wonder tuition has risen in excess of inflation for four decades."

He notes that "the core factor in the escalating cost of legal education is that the guild of law school professors long ago captured the combined regulatory apparatus of the American Bar Association (ABA) and the AALS. We law professors have constructed a legal education model that, first and foremost, serves faculty interests—higher salaries, more faculty protected by tenure, smaller and fewer classes, shorter semesters, generous sabbatical and leave policies and supplemental grants for research and writing. We could not have done better for ourselves, except that the system is now collapsing."

Dean Huffman proposes the following reforms:

1. Cut faculty numbers in half by requiring faculty to devote most of their time to teaching.  Reduce time devoted to scholarship and service.

2. Eliminate tenure and take advantage of a highly competitive market for law professors.  "A more competitive market for law teachers would reduce costs while improving teaching quality."

3. Reduce law school from three to two years.  "Although the law has become ever more complex over the last many decades, the basic intellectual skills required of practicing lawyers have changed little." "Law schools also have taken on many tasks, like instruction in basic writing skills, which should be and can be more effectively acquired prior to law school."  "The fact of the matter is that most third year students are biding their time, at great expense, until they are allowed to take the bar exam and get on with their careers."

4. Stop the facilities arms race. "While new programs and larger faculties have required law schools to expand office space, the last two decades have witnessed a surge in the construction of ever more palatial law school buildings."

5. Take greater advantage of online instruction technologies.  "There is little doubt that some of what lawyers need to know is best taught by professors in a classroom. But there is much that can be learned, as well or better, through online instruction."

He concludes, "These are just a few of the more obvious elements that might contribute to a new business model for legal education. Once legal educators accept that drastic change is needed, other, and probably better, ideas will surface."

Critique:  I agree with Dean Huffman that the business model of legal education needs to be changed, but I think that his view of the mission and susbtantive elements of legal education is outmoded.

First, I agree that law professors should do more teaching.  A law professor's job in today's law schools emphasizes scholarship at the expense of teaching.  However, I think that Dean Huffman goes too far.  Scholarship should remain an important part of the academy.  If law professors could just teach one or two more course a year, I believe that that would be enough to rebalance the equation.

Second, as I have written several times before, I think that cutting law school to two years would be a significant mistake.  (here)  Dean Huffman's notion that law school should be two years is based on an outmoded view of legal education.  He writes, "Although the law has become ever more complex over the last many decades, the basic intellectual skills required of practicing lawyers have changed little."  As our readers might expect, I strongly disagree.  The mission of law school today is to prepare graduates to practice, as much as we can.  While I agree that the third year of law school has traditionally been a waste of time, law schools should reform it, not eliminate it, so that graduates are prepared for the contemporary legal world.

His view of what legal writing provides law students is nonsense.  This view was prevalent when I started teaching twenty years ago, but I am shocked that a former law dean still holds it today.  Legal writing professors do not provide "instruction in basic writing skills."  Rather, they teach students legal analysis and how to communicate this analysis to a legal audience.  Legal writing professors are not instructors of remedial grammar.   What legal writing professors teach cannot be taught in undergraduate school.

Third, his proposal to provide more online instruction also reflects an antiquated view of legal education's mission and how learning works in general.  While online instruction can help provide the knowledge portion of law school, it cannot give students the skills they need to become lawyers, such as legal reasoning, the ability to apply the law to facts, synthesis, critical reasoning, and creativity.  Equally important, students learn more with active learning and can manipulate material better, than with passive learning.

Fourth, I do not believe that the problem with law schools is caused by tenure.  Rather, I feel that law schools are hiring the wrong types of professors.  Since the most important mission of a law school is to train lawyers, professors need to be as dedicated to teaching as they are to scholarship.

Finally, I cannot argue with his comments on facilities.

In sum, I believe that Dean Huffman has raised several important issues concerning legal education.  However, the solution to legal education's problems must focus on both the business model and substantive legal education.

(Scott Fruehwald)

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While I agree with much of your criticism of Dean Huffman's ideas, I think your objection to his comment about writing skills is misplaced. Dean Huffman's actual comment is "Law schools also have taken on many tasks, like instruction in basic writing skills, which should be and can be more effectively acquired prior to law school." Note that he says "basic writing skills," not "legal writing skills."

I agree with him that students are arriving at our door with worse and worse "basic writing skills" every year. There are many reasons for this, none of which are the fault of the legal academy, yet we have to address the problem. I don't want to become a remedial writing instructor, because that decreases the time I spend teaching the special, advanced skill of *legal* writing. So, yes, Dean Huffman is correct when he says *basic* writing skills ought to be acquired before law school. I just don't know how legal education reform can achieve that worthy goal.

Posted by: Ken Chestek | Feb 22, 2015 1:43:12 PM

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