Looking Forward: Legal Education in the 21st Century

Leo P. Martinez¹

Speech to the AALS House of Representatives, January 6, 2013

I am a fortunate person. My fortune can be best described by the number of people who have supported me throughout my career and have placed their confidence in me as I embark on my term as President of the Association. These people have all served a turn as President. They include Susan Prager, Mary Kay Kane, Judith Wegner, Nancy Rogers, Rachel Moran, Reese Hansen, Michael Olivas, and Lauren Robel. I follow a path blazed by them among others. Because I am smart enough to recognize my good fortune, I will draw on their wisdom to outline what will be my path in the coming year.

I begin with a short story. Some years ago in December, I was elected chair of the KQED board of directors. Those of you who are fans of public broadcasting know that KQED is one of the flagships of the public broadcasting system. In the subsequent new year on a Sunday morning, before even presiding over the first board meeting, I went outside to pick up the Sunday paper. I unfolded it and there, in a Pearl Harbor Attacked size font in the San Francisco Chronicle, was the headline “KQED on the Rocks.”² Whoa.

KQED’s critics were partially right. KQED and all of public broadcasting were facing difficult times. Public funding was in doubt because of a hostile congress, pledge and underwriting income were down, and many openly questioned whether the model of listeners and viewers voluntarily contributing to a public station was an outmoded model.

You’ll forgive me, I hope, if I mention a sense of déjà vu. It does not require a huge amount of effort to imagine Pearl Harbor Attacked size font on newspapers (as if they didn’t face issues) proclaiming “Legal Education on the Rocks.” That said, it is worth noting that the legal academy has faced criticism since the earliest days.

In 1879, for example, the ABA Commission on Legal Education & Admission to the Bar stated “[Law] schools . . . must be brought into a closer sympathy and contact with the profession than is now to be found. . . . It is unjust to students, and a fraud on the public, to recommend them as practitioners until they reach some creditable degree at least of skill and knowledge.”³

In 1921, Alfred Reed noted “The failure of the modern American law school to make any adequate provision in its curriculum for practical training constitutes a remarkable educational anomaly.”⁴

In 1927, the Dean of Stanford Law School observed: We have more lawyers today than there is any legitimate need for. The truth is that we are simply being swamped with aspiring young lawyers, most of whom will necessarily and within a few years after admission, drift into real estate, insurance and related lines, and that is not a process calculated to help the reputation of our profession.⁵

Fast forward to today and we hear Washington & Lee’s Benjamin Spencer succinctly state, “Law school graduates are under-employed, over-indebted, and under-prepared for practice.”⁶ To this Indiana professor Bill Henderson adds, “our ivory tower is crumbling.”⁷

There are many from both inside and outside the academy, who lack Henderson’s and Spencer’s erudition and constructive thoughtfulness, who say much the same thing with considerably less diplomacy. This chorus would fit neatly with the refrain of Bruce Springsteen’s “Glory Days,” in which he muses about how “time slips away and leaves you with nothing . . . but boring stories of glory days.”⁸

It doesn’t take much digging to see where this comes from. Applications to law schools are declining,⁹ the legal employment market can only be charitably described as stagnant,¹⁰ and even the Chief Justice of the United States openly questions our relevance – at least in the sphere of scholarship.¹¹ Glory Days indeed.

The persistent aspect of these criticisms begs the question whether there have been glory days about which to reminisce. In fact, you almost have to question how it was ever possible that the profession and legal education survived, even thrived, for all these years, supplying generations of lawyers for public and private practice, for the bench, for countless legislatures, and, along the way, providing our country with several presidents.

I don’t blame the critics. We will always face change, challenge, and criticism. However, in the current environment there seems to be little inclination to zoom out and provide a wider view. Two years ago, Michael Olivas reminded us about the “academic duty that is at our core.”¹² We in the academy have a duty to be responsible stewards of our institutions. It is only in this way that we can even begin to address the problems we face.

My big concern is that some of the less thoughtful rhetoric will cause us to waste time on things that don’t matter or on things we can’t really control.¹³ We have to develop some perspective and we must not forget some large realities of the current situation. Let me review just four of them.

First, the economy is terrible. Really. It is arrogant and disingenuous to believe that we in the profession and in the academy should be somehow immune from its effects. I am not suggesting that the issues we face will all magically disappear when the economy recovers. At the same time, my guess is that much criticism will be muted when the economy improves.

Second, there is a fixation on big law firm practice. While some of my best friends are big law firm lawyers, big firm practice is not the end-all and be-all of our profession. In my judgment this is a symptom of a maldistribution of lawyers brought about by warped salary structures and decades of underspending in the public sector. Many of our students want to be public defenders, prosecutors, judges, city and state attorneys general, and public interest lawyers. We need to remember that law schools play a role in supplying the people that support the infrastructure of our constitutional democracy. This matters.

Third, the cost of legal education has increased well beyond the rate of inflation. This increase has not occurred in a vacuum. We have tended to mirror the increased cost of higher education. Stanford economist Carolyn Hoxby notes that part of this increase is attributable to competition for students. In their recent work, economists Robert Archibald and David Feldman note that the high cost of human capital, especially well-educated workers like university professors, has also been one of the primary drivers of cost in higher education.¹⁴

Contributing to the problem, the widespread decrease in state funding of public universities has led to a de facto privatization of public law schools. I am painfully aware of this phenomenon in California, where we have seen a shift from a state-funding model to a student-centered funding model. The suggestion that fat-cat professors have fed the increase in tuition costs is, at best, a misleading one.¹⁵ This brings me to my last large point. We are not homogenous. I grate at the claim that the ABA and US News among others, forces us into a regulatory regime that insures uniformity or at least causes us to aspire to be like Harvard. While our member schools share many common traits, we are also very different institutions in very different circumstances. John Garvey¹⁶ captured this well during his turn as AALS President with his theme of Institutional Pluralism. For example, the CUNY School of Law and the University of New Mexico School of Law have long been pioneers in providing clinical education and experiential learning to their students before such approaches had currency.¹⁷ Indeed, many who criticize the academy for not producing practice-ready graduates seem unaware of the explosion in clinical education and experiential learning that has occurred in the past 20 years.

Our relative place in universities’ structure also makes us different. It is easy to see that the Washington and Lee School of Law, which numbers 400 law students,¹⁸ in a university with a total enrollment of slightly more than 2,100 students,¹⁹ faces a vastly different situation than the Arizona State College of Law, with about 600 law students²⁰ in a university with a fall 2012 enrollment of 72,254 students.²¹

Some years ago I had the pleasure of sitting in on a class at the University of North Dakota School of Law in which a very able instructor addressed, in the context of his substantive course, the economics of law practice – a subject that is a necessity for a school whose graduates form the cadre of small-town practitioners in the Great Plains. North Dakota has well-adapted to its surroundings in a way that may not be well-suited to more intensely urban law schools. The simple point is that we are not homogenous.

So what to do. This audience is well aware that the crafting of legal education is, at best, an inexact science. This inexactitude was well-captured by one of my predecessors, Stanford University law professor Deborah Rhode, who observed about 10 years ago that “the structure of legal education reflects a complex mix of public policy, professional oversight, market pressure, and academic self-interest.”²² Her observation was remarkably accurate and prescient. Today, we in legal education deal with an exceedingly complex mix of public policy, professional oversight, what seem to be crushing market pressures, and, most surely, no shortage of academic self-interest. In KQED’s case it was easy to recognize that criticism was not crisis. The board, composed of capable people, focused on core problems, it looked at what we faced in a systematic and organized way and it didn’t spend time on matters beyond its control. It was a good start, and I was able to hand off to my successor a stronger organization than I inherited.

Our task is slightly different. Legal education has many more moving parts than even a big market media organization. First, like KQED, we must look at our own situations in a systematic and organized way. We each must take into account our own economic circumstances, we must take into account the different roles our graduates can play and will play in the course of their careers, and we must deal with our very different individual situations. It is only in this way that we can tackle the issues that we face, including: technology in the classroom, distance education, the expansion of non-JD graduate degrees, access to legal education, diversity, the providing of legal services in a broad way, globalization, and, the high cost of legal education to name but a few.

Second, there is much outside the walls of each law school that affects each of us. It is in this instance that particular care must be taken. I take to heart Michael Olivas’ caution to do no harm.²³ For example, the call to limit student loans to effect some control over the cost of legal education falls precisely in this category. The structural costs incurred by universities will not diminish by limiting loan availability. If, as a practical matter, only the wealthy will have access to a university education or to law school, we will deny to a large segment of society the tools it takes to effectively advocate for justice in our constitutional democracy. In a forthcoming article, Bryant Garth compares the rhetoric of today with criticism of legal education and the legal profession in the context of the Great Depression.²⁴ He notes the similarity of recipes for reform that would discourage the non-affluent from pursuing the benefits of a law degree.²⁵ If our goal is to do no harm, the calls to limit student loans are easily seen as misplaced.

In the same way there are fundamental tensions that all law schools face and try to resolve in similar ways. It could be that the standard ways of dealing with affordability and professional competence – for example the mix of full-time, adjunct faculty, clinics and supervised externships –- are all wrong, but the tensions will remain and the critics seem to pretend there is a free lunch in changing the default solution to these tensions. Again, we are better served by focusing on ways we can reshape legal education to be more efficient and less costly while doing no harm. In facing hard times we need capable people who do not shy from responsibility. In this regard, I’ve had the distinct honor to ask many faculty members to accept appointment to the many committees of the Association. These committees allow the Association to function and, if the enthusiasm with which those who have been asked to give an extra measure of service is any indication, we are in good hands. Moreover, I know that these individuals reflect the talent that resides in all our member schools. For my part, this next year will be occupied by my theme for the coming year “Looking Forward: Legal Education in the 21st Century.” This is not a new theme. On Michael Olivas’ watch, we devoted a large part of last year’s annual meeting in Washington on a Workshop on the Future of the Legal Profession and Legal Education. Under Lauren Robel’s leadership, we devoted this afternoon’s Presidential Program to Law Schools and Their Critics and a Hot Topic Program addressed Transparency Revisited: New Data, New Directions. Next year in New York, we already plan to devote a day-long Workshop on Tomorrow’s Law Schools: Economics, Governance, and Justice. This in addition to other programs we will formulate in the coming year with the help of able planning committees.

We will continue our work, primarily through the Association’s Resource Corps in helping member schools map out strategies tailored to their needs, their resources, their circumstances and their students. We will also devote time to training and cultivating future leaders. We will continue our active engagement and debate on matters that affect us all. We will address constructive criticism, we will engage in meaningful self-reflection and we will seek to educate the public about our role in maintaining our democratic infrastructure.

In her address last year, Lauren Robel lamented that “[s]ome of the critics frame their stories in ways that cast those in the academy as the adversaries of our students and graduates. To most of us who make our lives in the legal academy, these stories have been painful, sometimes excruciatingly so.”²⁶

I share her concern in this regard. My own colleagues and the hundreds of law faculty members I have encountered in various capacities give lie to this criticism. It is our colleague Professor Phil Schrag who has advocated for the loan programs,²⁷ it is our colleague Judith Wegner who has devoted much of her stellar career to thinking critically about the education of law students through her Carnegie Foundation work,²⁸ it was our colleagues who wrote the Texas Top Ten Percent plans, and it was our colleague Derrick Bell, who was honored earlier today, who provided personal inspiration to generations of law students. I am proud of these many men and women who go the extra mile for their students, who provide students with first-class instruction in substance and in life’s lessons, and who are willing to grapple with the issues they face in the sober-minded and serious manner that is required. We have much work to do, but because of you and the rest of our colleagues I am confident that we are up to the task. I look forward to serving you in the year ahead.

Endnotes