The Window for New ABA Law Schools is Closing Fast

The following article appeared on Page 20 of the September 1, 2009 issue of the Fresno Bar Bulletin, the newsletter of the Fresno County Bar Association.

The Legal Researcher
By Brian L. Baker, MLS, JD

Legal Education is in a transformative stage.

This transformation comes on a number of different levels. It is a response to the economics of the recession and its effects on law practice, the steep drop in trials nationally, and the way law is taught in America. I believe there will be a contraction in the number of law schools, both ABA and others, from the current numbers, about 250 nationally, 190 of which are ABA approved.

On March 16, 2009, on the Mauled Again blog (http://mauledagain.blogspot.com), James Edward Maule wrote an article entitled “How a Transformative Recession Affects Law Practice and Legal Education.” The question raised is “[d]oes it make sense to give up three years of salary and pay out law school tuition, either up front or through debt repayment, in exchange for the increased income expected to be earned by reason of having a law school education?” For many the answer is no, and this will have a profound effect on legal education nationally.

As law jobs dry up in law firms and elsewhere, many prospective law students are coming to the realization that a JD, with its often $150,000 student loan debt upon completion, is not a good investment. When a law school’s potential job market slumps to the level of other advanced degrees, and salaries continue to fall, the risk, from all that debt, becomes too high for even the most dedicated true believer.

These relationships are becoming quite a concern to law Deans across the country. Timed to coincide with the American Bar Association’s annual meeting in Chicago, De Paul University College of Law is sponsoring a two-day symposium entitled “Vanishing Act: Legal Education in a World Without Trials,” for Deans of ABA accredited law schools. According to an article on lawjobs.com (http://tr.im/oihj) entitled “Chicago Symposium to Address Effect of Vanishing Trials on Legal Education,” the “symposium brochure said federal civil trials dropped to 3,500 in 2006 from about 12,000 in 1984.”

Much of the debate seems to center on how legal education will be taught as we move forward. Does the traditional Socratic “hide the ball method” really make sense anymore? On the other hand, does spoon-feeding the law to students so they can regurgitate the law accurately on law exams teach them to learn the law in a coherent whole? Are practice oriented courses and clinics the right approach to legal education, or is it an indoctrination into a way of thought?

The right answers to these questions will make or break law schools in the near future. Sure, the Berkeleys, the Stanfords, the Yales and the Harvards will still be bastions of Socratic method, but over the last fifteen years they too have greatly expanded their clinical experiences. Those schools offer clinical education to students who are interested. Their students usually pass the bar at a 95%+ rate. Other ABA law schools, like the University of the District of Columbia David A. Clarke School of Law (UDC), require 14 credit hours of live client clinical education in order to graduate. UDC and similar schools often have bar passage rated in the 60%+ range.

Why is there such a broad difference? Probably most of the difference is made up in the quality of student those schools can attract, as they have comparable pass rates after three years post graduation. To me that indicates the bar exam is more attuned to the teachings of the Socratic method than it is to the realities of practicing law. How do the middle tier law schools react to the reality that clinical education teaches law students to practice, but the Socratic method teaches them, in theory, to pass the bar?

I think that as applications drop, some of these lesser law schools will close and many will begin to look at mergers. We are looking at a transformation in legal education and need to be ready. I think that the UC Irvine law school will be the last school to successfully apply for ABA accreditation for quite some time. UC Irvine has a great location, big donors, the ability to offer their entire initial incoming class free tuition for their entire time in law school, and the star power of an Irwin Chemerinsky as Dean. The vast majority of law schools, let alone a start-up law school, can’t possibly compete with those benefits.

As Chemerinsky states in the California Lawyer (http://www.callawyer.com/story.cfm?eid=899353&evid=1), “We need to figure out what the ideal law school for the 21st century should be,” he says. “If we just replicate other law schools, UCI will fail in its unique opportunity to create an ideal law school.” So, what is his plan? Simple, “starting with its first year, when law students will be introduced to the practical tools of their profession through a lawyering-skills class that integrates clinical experience. Then, in their second year, students will work through simulated fact situations, honing their skills in a particular field of civil or criminal law, so that when they are ready to register for a third-year, semester-long clinical course, they will already have a working knowledge of how to represent clients.”

In addition, Dean Chemerinsky plans to introduce inter-disciplinary education into doctrinal courses. For example, the Dean states. “[i]f you’re going to do business or tax law,” he argues, “you’re going to need to know some economics. If you’re going to do criminal law, you need to know some psychology. If you’re going to do patent law, you need to know some engineering. And if you’re going to do environmental law, you need some environmental science.”

This, my friends, is the future of legal education. Not many schools can afford to do it at the tuition levels they charge now. Not many schools will be able to do it with the faculty they have now. This alone will close many law schools and cause many to be merged.

In addition, law schools that think that getting a big money donor to give them a new building, or wing, is all it takes, will be taking their donors, their communities, and their students, for a ride. According to the Business Journal (http://tinyurl.com/njufed), charitable giving was down 2% nationally in 2008. As the recession continues, big donors do not need a deduction generally, and probably will secure their money until they know which way the economy is going for sure.

I believe the corner has turned on legal education.

The number of ABA schools will no longer expand, but contract. It will take visionary leadership for law schools to survive, and frankly, most law schools in this country do not have visionary leadership.

We are entering a transformative time in legal education. UC Irvine is uniquely poised to take advantage of these changes. Dean Chemerinsky knows it. He says, “our goal is to be a top-20 law school from the moment we are ranked,” he declares. “And, yes, I believe that is realistic.”

So do I.

As a law librarian and law professor with 20 years of experience working in legal education, I am excited by the coming changes in legal education. I hope the changes will breathe new life into the practice of law.