The New York Times recently published an article discussing the turmoil within the legal community regarding the growing disconnect between the practice of law and the study of law. The article summarizes some of the concerns that have been voiced by practicing lawyers, legal scholars, and law school administrators and professors. In essence, the needs, skills, and expectations of recent law school graduates are at odds with the actual skills that the practice of law requires. The growing unemployment rates of law school graduates, coupled with the high price of a legal education, are ostensibly deterring individuals from even applying for law programs.
Among the solutions that have been proposed are (1) reducing the number of years of law school from three to two (to reduce the debt of graduates), (2) establishing a program for limited-license legal technicians (to improve access to low-cost legal services), (3) diversifying the legal education curricula (to provide a broader education to both law students and non-law students), and (4) changing the paradigm of the tenured law professor (to reduce the costs of maintaining law schools).
The general consensus, as described in the article, is that the legal-education system is in dire need of an overhaul. Some of the measures taken in isolated schools and states are a good start, but they are not enough. As a recent graduate of law school and non-practicing attorney myself, I will provide in this column my own perspective on the problems and possible solutions.
I will first describe what law school does and does not provide its students. I recognize that each law school is different, and my descriptions likely do not represent the situation for all schools. However, enough law schools do fit the paradigm I describe to warrant consideration of changing them as a starting point for the larger future project of fixing the legal profession itself.
Next, I will describe the demand of legal services, and the sources of that demand. From that description, it becomes clear that the lawyers whom many law schools produce are neither equipped for, nor prepared to, (let alone interested in) serving the bulk of people’s actual legal needs.
Finally, I conclude that while some of the proposals for reforming legal education are effective, either as stopgap measures or as components of a comprehensive solution, no solution is complete unless it addresses the scarcity of good career advice for students before they opt for law school. Just as patients must give informed consent to undergo a medical procedure, so must students be given the opportunity to make fully informed decisions in choosing their future careers.
What Law School Does (and Does Not) Provide
While many people have an impression of what law school is like, either through films like Legally Blonde (2001) or books like John Jay Osborn’s The Paper Chase or Scott Turow’s One L, most who have gone through the experience will maintain that no one can really understand the experience without going through it personally. Just as many practicing physicians revel in their memories of the hellish experience that is residency, attorneys take a certain pride in surviving the rigor of law school that outsiders “just don’t understand.”
That said, it is certainly possible to quantify some of what law school does and does not provide. The American Bar Association (ABA) does not prescribe what courses a law student must take, but most schools require all students to take the following courses: Civil Procedure, Constitutional Law, Contracts, Criminal Law, Property, Torts, and Legal Research and Writing—and most of these courses must be completed during the first year. The ABA does require students at accredited schools to take an ethics course in Professional Responsibility before graduating. Schools differ in what other courses they require, but many allow students significant latitude in choosing which courses to take.
This freedom is a double-edged sword for many law students. Although some students know exactly the area of law in which they want to practice when they graduate, far more are undecided. Given so much discretion with little guidance, many students end up taking courses that are irrelevant to what their ultimate areas of practice will be. (In my own case, I took a few courses that were, although interesting, also irrelevant to almost every area of practice). If a student has a mentor or advisor and knows what he or she wants to do after law school, then the mentor may be able help the student make decisions regarding classes. If a student has never had a tax law course, for example, it may be difficult to say whether he or she might want to practice tax law (and no first-year law student would have taken tax law). Thus, it is possible for a student to graduate from law school having taken few or no classes that prepare him or her for actual practice. (That said, many schools do offer courses and clinics that are more geared toward the experience of legal practice, but those schools often do not offer adequate incentives for students to take these courses instead of the more academic-focused ones.)
On top of that, most law schools—regardless of their rank or prestige—have tuitions that exceed $40,000 per year, and the cost is steadily rising. For a three-year program, that means over $100,000 in educational costs (not to mention living expenses). At most schools, some financial aid and merit scholarships are available, but many students still incur substantial amounts of debt to pay for law school, either to the government, private lenders, or both.
Thus, in a worst-case scenario, a student can graduate from law school with almost no practical legal knowledge and a six-figure debt that has been accruing interest over three years, with little choice but to become an associate at a private firm. Even students in less drastic financial situations, perhaps due to parental assistance, have a strong incentive to seek high-salary jobs at private firms. However, these jobs are hardly a guarantee for graduates, and have been extremely limited in recent years. Many law firms actually lose money on first-year associate attorneys, given the up-front costs of training new hires. For large firms, this cost can be recouped by the sheer number of hours attorneys work, but at small firms and public interest organizations (such as legal aid and nonprofit groups), the cost of training is prohibitive and only experienced attorneys have a chance of being hired. As a result, many law school graduates today are unable to find full-time employment as lawyers.
The Legal Services That Are Needed in the “Real World”
Every day, we face a litany of potential legal issues, although we really only notice them when something goes wrong. Property owners commonly neglect to “reasonably” maintain their premises, but most of the time, no one is injured as a result. When we visit websites or submit data, we agree to terms of service or privacy policies without thinking twice. Married couples share their lives and their incomes and expenses. Individuals seeking rental housing shop around until they find a place that meets their needs and accepts their application.
But when something goes wrong—a serious slip-and-fall injury, the failure to deliver expensive merchandise, a married couple seeks to divorce, a landlord illegally discriminates against a prospective tenant—legal advice becomes imperative. Yet for many people, the cost of hiring an attorney is a major deterrent to resolving their legal problems.
Although some attorneys work on a contingency-fee basis, which means that the client does not pay attorney’s fees unless they win their case or receive a settlement, many attorneys do not. Moreover, even attorneys offering services on a contingency fee basis often decline to represent individuals whose claims are likely to cost more in time and labor than the amount the attorney expects to eventually be compensated, or for other reasons.
Although access to the courts is a constitutionally protected right, the cost of hiring an attorney effectively prohibits access to the courts for many injured or wronged people, particularly those in low- and middle-income classes. With an increasing number of lawyers in the large corporate firms mostly representing corporate interests, the middle-class individual who is seeking, say, help to draft a will or contest the terms of a contract is increasingly left with few feasible options.
The real world needs a full spectrum of types of attorneys, from complex business litigators and transaction attorneys, to will drafters and simple contract reviewers. A divorcing couple with few assets, no real estate, and no children has a completely different set of needs than a high-net-worth couple with real estate in several states, stock options, and children from their current and prior marriages. The need for legal services to address simple, relatively straightforward legal issues far exceeds that for more complex issues. Yet despite this demand, law school graduates are being shuffled either into unemployment or corporate-oriented firms.
The Current and Proposed Solutions to This Quandary Are Good, but Not Enough
The disparity between supply and demand in the legal profession has been the subject of increasing discussion. Some individual schools and states are taking steps to resolve the issue, but a concerted effort is required.
Some time ago, Harvard Law School announced that it would waive the third year of tuition for students who pledge to spend at least five years working for a nonprofit organization or the government after law school. The State of Washington recently approved a program to certify limited-license legal technicians (LLLTs), who would be able to engage in certain activities that have traditionally been defined as the practice of law. These LLLTs would have training and education requirements and would be regulated by the state they did business in, but they would not have to attend law school (nor could they practice law in the sense that attorneys do). Although these efforts are laudable, positive, and perhaps even essential, they are far from adequate to solve the problem at hand.
One component that I believe is notably absent from the discussion of reforming the legal profession is a determination as to who is currently deciding to (and deciding not to) attend law school. The quality of career-advising services differs hugely from school to school, but college career advisors should have a clear voice in this conversation. In my experience, there is no shortage of advice if you announce that you are interested in a particular career path. But how do you come to that conclusion in the first place? Law, medicine, engineering, and perhaps academia are the only “defined” career paths for many college students. And yet there are entire industries and professions that many college students simply do not know to exist. By focusing on questions like “Do you want to focus on serving clients?” (a question that many college students can answer more confidently than a more direct question about their career choice), career counselors can more effectively advise students as to whether they should pursue certain types of careers, such as law.
Many people I know who chose to go to law school did so almost by default, using reasoning such as, “I didn’t want to be a doctor, so I came to law school”. That phenomenon is as much a part of the problem as is the substance of the courses taught, or the law school tuition rate. Without considering the very reasons for which people are considering law school in the first place (and correcting their misconceptions about law school before they even get there), any solution would likely fall short of being a true fix for the current disparity between legal education and the legal profession.
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All of this is very well and good, but it doesn’t address one of the most the basic aspects of the problem: an oversupply of law school graduates.