The time seems ripe for making changes in legal education, but which ones?

Not so long ago, law school was a growth industry, with new schools being created and enrollments going ever higher. What a turnaround there has been over the last ten years. 

Enrollments of first-year students are back where they were 40 years ago. According to the Law School Admissions Council, in 2004, more than 100,000 students applied for law school, but in 2013, just 59,000 did. Some law schools have had to lay off faculty members and administrators. Four independent law schools have recently had their bonds downgraded to “junk” status by Moody’s and Standard & Poor’s, reflecting their questionable finances.

Officials at the Thomas B. Cooley law school decided to cancel the entire incoming class for this fall at its Ann Arbor campus.

Some law schools have significantly cut tuition. That has helped to stop their enrollment slide, but this may be one of those “rearranging the deck chairs on the Titanic” phenomena, since students lured into Law School A with a discount are lost to Law Schools B through Z.  

The federal government has helped to keep law school enrollments from falling even more. As this Wall Street Journal editorial noted recently, the “Pay As You Earn” program that was expanded in 2011, “has been a slow-motion bailout for law schools.” Students who graduate with heavy debts will be able to escape from paying much of it back provided that they go to work for government or for a “public interest” law firm. 

That article led law professor Glenn Harlan Reynolds to suggest on his Instapundit blog (April 24):

Next scam: Law schools start “nonprofit” law firms that hire their own graduates, thus boosting their U.S. News rankings by ensuring their grads have jobs while letting their students get out from under debt in half the time. Plus, faculty can have high-paying side jobs managing things at the “nonprofit.”

Could there, however, be a silver lining in the law school decline? In a recent Chronicle piece, “As Law Schools Struggle, Diversity Offers Opportunities” St. Louis University law professor Aaron Taylor argued that there is.

Taylor notes that the fall in law school applications has been the greatest among whites and Asians; that is good, he contends, because it will help redress the fact that (as he sees it) blacks and Hispanics are “woefully underrepresented” in the legal profession. 

While those groups comprise roughly 30 percent of the population, they account for only 8.5 percent of America’s lawyers. Like so many others who believe that statistical gaps between groups should be closed or eliminated by social engineering, Taylor wants law schools to close the “gap” in lawyers.

With white and Asian students steering clear of the legal profession, you have to wonder if it is really beneficial to lure more minority students into law school, but let’s take a look at Taylor’s proposal.

He thinks that law schools would recruit and graduate more students, particularly women and minorities, if they’d alter the way their courses are taught. He writes that the mainstays of legal teaching—Socratic and case methods—put “students of color, women, and ‘nontraditional’ students at a disadvantage.”  

What’s wrong with those methods? Allegedly, they aren’t good because women ask questions in class less frequently and “diverse perspectives are not as commonly expressed.”

Whether or not that’s true has no bearing on the key point: do students learn enough in law school to be able to pass the bar exam and enter the profession? Classroom experiences are long-forgotten by that time. 

Moreover, much of what lawyering is about requires the ability to recall and distinguish cases. That’s the essence of the case method. If you don’t find out that you aren’t good at that during law school, you could be making a bad career move.

Still, if any law schools are persuaded that they would fare better if they followed Taylor’s advice on classroom pedagogy, they are free to do so.

Unfortunately, law schools are not free to make many other changes that would do a lot more good, both for law students and for the clients they will eventually serve. That is because the accreditation standards imposed by the American Bar Association (ABA) require schools to operate in costly and inefficient ways. 

Arguably the most vociferous critic of the ABA’s law school mandates is Larry Velvel, dean of the Massachusetts School of Law. In the short but impassioned book he wrote with Kurt Olson, The Gathering Peasants’ Revolt in American Legal Education, he made the case that law schools could train future lawyers at much lower cost if only the ABA would allow that. 

Velvel and Olson write that the ABA’s policies are “designed to ensure continued and increasing economic and professional benefits for professors and deans.”

Specifically, they state, the rules “are focused on inputs that aggrandize faculty desires. These include rules limiting the hours of teaching, limiting overall workloads, demanding large, full-time faculties, and a requirement that most students be taught by full-time, tenured professors housed in plush facilities.”

It’s as if the hotel industry could mandate that all hotels must have king-size beds, Jacuzzi tubs, the plushest of carpeting, and state-of-the-art TVs, all justified by the twin considerations of ensuring quality and protecting the consumer. 

The ABA’s power comes from laws in most states that either prevent people who have not graduated from an ABA-accredited law school from taking the bar exam, or severely delaying them.

Those needlessly high costs must be paid by students, who often incur heavy debts while taking lots of courses they will never put to the least bit of use. (The ABA also mandates that law school programs take three years to complete, which means that students have to take many courses they will never need in order to get enough credits.) People who can’t afford the high costs and heavy debt load are unlikely even consider law school and a career as an attorney. That has a far greater impact on minority students. 

Furthermore, students who can get through law school are often so burdened with debt that they can’t afford low-fee clients. 

Instead of worrying about diversity among law students, I think it makes more sense to worry about the how the inordinately high cost of getting through law school affects the diversity of people who can afford an attorney when they need one. After all, when someone needs legal help, he probably isn’t concerned with the race or gender of the attorney, but only with his competence and affordability.

So, while I agree with Professor Taylor that the current troubles at many law schools present the opportunity for change, his focus on making the student body more diverse is tangential at best.

The change that would have the greatest effect would be to free legal education from the self-interested clutches of the American Bar Association. Its accreditation standards prevent innovation and competition that would lower costs, lower time commitments, and improve learning outcomes. 

Of course, those changes won’t come from the ABA itself. They will only occur if states repeal the laws that give the ABA its stranglehold on legal education by allowing anyone to attempt the bar exam, no matter where or how he has studied. Then and only then will we get robust competition among existing schools and an open field for new forms of legal education.

I hesitate to call anything a panacea, but no matter what your reason for opposing the status quo—not enough diversity, too much debt, not enough lawyers who will work with low-income clients, too much leftist activism—allowing a free market in legal education is the path to your goal.