WILLIAM J. CARNEY

Charles Howard Candler Professor Emeritus, Emory University Law School.

It is almost trite today to catalog the problems of modern legal education. The popular press and the internet have done a pretty good job of making the professional concerns of legal educators almost popular fare for casual readers and especially for prospective law students. But, just to hit the highlights, here is a list of the better-known grievances: high tuition, too many law schools, broken accreditation system, inappropriate training for modern practice of law, unneeded and esoteric courses, ideological bias in teaching, arbitrary admissions policies, undue reliance on standardized tests, underworked, overpaid and inaccessible faculty, “publish or perish” mentality instead of focus on quality of teaching, ideological hiring practices, lack of specialization and innovation, bloated administrative staffs, exorbitant administrative salaries, promotional materials misleading about prospective employment, inadequate preparation for the bar exam or conversely too much attention to the bar exam.

Retirement and age provide opportunities for reflection. While one senses that the profession of legal education has changed, and some elements, such as faculty diversity are obvious, my interest is in what we teach our students, not who teaches them. This represents a personal journey through the modern history of legal education. It is obvious to the casual observer that these two subjects are not entirely unrelated, but that is not my subject of inquiry, except to separate interdisciplinary faculty from what I will call “lawyers.” The professoriate has become less professional and more academic and, in some cases, more ideological in its orientation. Over a longer span than I choose to examine, that is obvious from the disappearance of YMCA law schools, proprietary night schools and the like, taught largely by practicing attorneys and judges. I suspect it also affects the background of new law teachers, in terms of the extent of their practice experience. With eleven years of practice and no publications beyond briefs and memoranda, I suspect I would have had a more difficult time obtaining an entry level appointment today.

My investigation has turned up evidence of poor management of law school economics. The size of the law schools’ entering class in 2017 was almost the same as that of 1973. At the same time, law schools were added, and the total size of the faculty grew by 70%. Given the existence of tenure, law schools are now faced with the dilemma of paying for the faculty hired during the high enrollment years. There was apparently little recognition of business and employment cycles, or the need to be prepared to downsize. Change can come only slowly, perhaps too slowly, as free-standing law schools’ deaths or mergers evidence, with either the enrollment of less-qualified students, higher (and unsustainable) tuition increases, or greater university subsidization of previous (and continuing) mistakes. Nominal tuition, adjusted for inflation, has more than doubled at private schools and quintupled at state supported schools, while bar passage rates have declined from 82% to 72% for first time takers. This bodes ill for many schools, as the American Bar Association now requires that 75% of graduates pass a bar exam within two years of graduation.

A subsidiary question that I will not explore fully in this article is, given the proliferation of courses, including many subjects not classified by the AALS, is whether the purpose of the law school is to educate tuition-paying students to prepare them for practices successful enough to pay off their growing student debt, or to prepare them to favor the subjects of faculty interest in society. My study shows dramatic increases in faculty size, course offerings, tuition, and evidence from bar passage rates of a less prepared graduate. All this is similar to what one would expect from cartel behavior. That similarity is partly a function of a U.S. News rating system largely irrelevant to professional preparation and uninformed applicants subsidized by aggressive student loan programs without adequate controls over the expected ability of students to repay these loans in the future. Others have noticed the effect of the American Bar Association’s control over law schools as creating such market power. [Read entire Article here].