Legal Education in Crisis? Workshop: Intro & Panel 1

by Paul Maharg on 04/03/2017

At the behest of Beth Mertz I’m attending a two-day legal education workshop in Chicago – ‘Legal Education in Crisis? Bringing Researchers and Resources Together to Generate New Scientific Insights’.[1]  I’ll be live-blogging the workshop.  More detail on it and the opening remarks below the fold.

The conference is funded by the American Bar Foundation and National Science Foundation.  The conference overview notes the recent history of legal education reform in the US, and the ‘proliferation of unexamined generalisations and ideas’, observing:

Missing from much of the debate were broader consecrations such as trends in educational institutions beyond just the law schools; the longer history of large law firm ‘tournaments’ and concomitant pressures; the larger picture of legal employment beyond the large law firms; the fact that law schools and their graduates are not all alike; the effects of rising numbers of law students coming to the US from abroad; and more.

The workshop seeks to bring ‘scholars who are guided by social scientific theories and methods into conversation with each other, from across the social sciences’.  It hopes to enable scholars to ‘use their differing disciplinary perspectives to shed light on the complex interplay of economic, cultural, social structural, political, institutional, and other factors shaping legal education today’.

Beth welcomed us in, observing the ‘tournament’ of reform that the Carnegie Report generated.  We need to know, she said, what different law schools are doing, what works and why.  She noted the different disciplines represented — politics, economists, social scientists — putting our hands on the elephant from a variety of different expertise and directions. Ajay Mehrotra emphasised the ABF context to the event. Hilarie Bass, incoming president of the ABA, emphasised her determination to focus on legal education.  She made the interesting point that the ABA has been more involved in monitoring and oversight than advocacy for the broader issues involved in legal education; and she wanted to change that direction, citing a number of examples.  It was what we advocated for regulators in England, in our LETR Report, (especially Recommendation 25).  She emphasised the research base that the ABF could contribute to that change of direction.

First Panel summarised the available research on the processes that shape who enters law school, why, and their relative situations at the start of their legal careers, and how the dynamics differ across differently situated law schools.  Steven Boutcher, Anna Raup-Kounovsky and Carroll Seron on ‘Nothing to fear but dept itself: understanding the dynamics of indebtedness among law students’.  1.3 trillion outstanding in student loan debt.  High variation in debt, the reproduction of social inequality, and the potential  negative impact of debt — these are the sorts of issues that debt brings about.  The broader context is that 63%of professional practice doctoral students borrow; but re law school debt, there are concerns about variability of debt and ability to pay and choice of practice as a result.  Their research question was developed on this.  UCI Law School was a case-study of those students who obtain tuition support at a new law school.  There was panel data, an online survey (1L & 3L) with high response rates ranging from 64%-94%.  There were rising debt stats across the cohorts 2012-15 from a mean c. 37K in 2012 to over 100K in 2015.  Fears of debt impacted their professional choices of employment; it affected other issues such as having children and choice of where to live.  They presented a full summary of independent variables, which was impressive as a quantitative study.  Big difference was between full support and partial or no financial support.  The model predicted the debt that students would incur.  There are policy implications for tuition wavers.  Full tuition support lowers debt loads, and anything less than full tuition support has less impact on graduates’ levels of debt.

Next up, Stephen Daniels, ‘The perennial (and stubborn) challenges of affordability, cost and access in legal education’.  Historical survey of the problems.  He cites John R. Kramer, writing in the 1990s, that elasticity and the value proposition (rock and a hard place) are key; no magic bullet to the problem; and we just muddle through.  The problem: law schools need revenue, students need a source of funds to allow students to pay the tuition.  Solution: scholarships, grants, loans, especially the last.  Loans are long term investments.  He took us through a brief history of enrolment and fee amounts.  Prior to WWII, there was very small amount of debt, because the fees were so low.  Enrollment in 1943 was 4,248: in 1947 it was 42,227, largely because of the GI Bill (Servicemen’s Readjustment, etc).  What was the new business model?  It led to questions about government involvement — public good or private good?  Ultimately, ABA wanted no government involvement.  It will, they said, ‘will inevitably lead to the socialisation of the legal profession or at least of legal education, and trend towards a totalitarian state’ (ABA Special C’ttee Report, 1952-53).  Remarkable.  Long-term loans was the way forward for the ABA.  Compare William Tucker in 1964, who advocated for publicly funded legal education, for most but not all, ‘available to the barber’s son on no more onerous terms than the broker’s’. He disliked long-term debt, noting that it skewed the class basis of entrants to law schools.  Kramer, 1987, noted ‘without the intervention of the federal government in the 1970s legal education would not exist’.  Daniels showed the huge increase in students and revenue for law schools, and how the increase merely increases Kramer and others’ concerns about the sustainability of the business model based on long-term loans.  Is the value proposition, post GFC, now imploding?  Daniels presented stats on the complexity of this — too complicated to summarise here.  But Kramer’s muddling through solution is still prevalent.  Questions raised by this: too many lawyers of specific types? Too many law schools?  Limited license legal professionals, eg nurse practitioners, expanded functions dental assistants, etc?

Next, Wendy Espeland and Michael Sauder, ‘Ranking Talk and Ranking Thought in Law School Admissions’, from their book Engines of Anxiety.  The book was based on nearly 200 interviews across law school personnel, quantitative analysis and took into account ethnographic data on admissions.  General insights: law school deans and faculty despise the rankings; consequences of rankings are pervasive; effects of the rankings are unintended; rankings are ‘reactive’.  Cited Campbell’s Law and applied to rankings, eg reallocation of resources to maximise rank, redefinition of work and policies, manipulation of rankings criteria (ie gaming strategies).  Effects on students?  They’re a primary driver of ranking effects, and the rankings are valuable to students due to ‘information asymmetry’ (and US News plays on that).  Do students use rankings?  If so how?  The authors analysed rankings and admissions: ranking changes affect the number of students that apply to schools, and the number of top students that apply.  Students used them in complex ways: debt, location, what they wanted to do in law, shaped students’ decision structures by shaping the cognitive map of students.  Some students didn’t use rankings at all — they were focused on specialisation or location.  Who gets into law schools? Students with high test scores, merit scholarships, etc.  Interviewees noted the pernicious effects of focusing narrowly on LSATs.

Finally, Aaron Taylor, on ‘Law school scholarship policies: engines of inequity’.  Aaron was an admissions officer in his faculty.  Noted increase in debt in his presentation of course, but analysed debt expectations and concluded that law schools increased debt burden was being borne more by the students who could least afford it.  72% of respondents receive a scholarship.  Students at private schools & full-time students more likely to receive a scholarship.  White students much more likely than Black or Latino/a to receive a scholarship.  Same for merit scholarships.  Need-based scholarships: Black & Latino/a most likely, White least likely. First-generation students more likely than second-generation to get them.  He presented data on LSAT score distribution by ethnicity that showed the gulf, as did parental education score distribution. More data presented comparing LSAT with other variables, eg receipt of a merit scholarship was associated with lower levels of debt, and receipt of a need-based scholarship was associated with higher levels of debt ($200K + …).  Conclusion — vast majority of scholarships go to students who don’t need them and aren’t distributed equitably.

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