Thoughts on Practical Legal Education III

As you know, we have often commented upon practical legal education (including yesterday, when our own Frances Zacher remarked upon President Obama’s recent suggestion that law school be shortened to two years). This topic, of course, is in the news again, and Steph Kimbro of the North Carolina Law Blog offered her thoughts recently on this issue:

My concern is that if the law school length were cut down to only two years, more of the practical courses that do exist in the curriculum would have to be cut. The bar exam isn’t changing any time soon, then students would still be hard pressed to take all the substantive bar courses and the practice areas they are interested in only in two years. That may push the practical skills, legal writing, law practice management courses, incubators, clinics, mock trial, law review and many other extras further to the side.

Kimbro makes a good point. Law students, being practical, are going to maximize their time in school in order to prepare for the bar examination. Presumably, any reform in the length or substance of legal education would likely leave the historic first year intact. Students will still be called upon to take contracts, property, and criminal law, and learn historic concepts but the law of no jurisdiction in particular. The value of the first year – despite the lack of reference to any specific state’s statutes or cases – is that it introduces students to legal concepts and begins to train them to think like lawyers. The second year, of course, depending on one’s school, may be comprised of mostly electives, and the stereotype of one’s third year is that it is spent mostly on the golf course and/or seeking future employment. That is certainly not the case at all schools. However, perhaps it is time to transform the third year from electives and fluff into a thorough and comprehensive practice and advocacy program. As we have noted before, there is no reason for there to be a “gap” between one’s law school matriculation and the beginning of one’s practice in the legal profession (despite the fact that some states, like South Carolina, require mandatory courses “bridging the gap” between those two points). But why is there a gap in the first place?

If students are going to go into significant debt in order to obtain a law degree, they should leave school with more training than they have. The debate should not be about whether or not law school should be shorter but whether the surplusage of the third year should be transformed into something far more substantive.

Obama: Shorten Law School To Two Years

Here at Abnormal Use, we’ve blogged a lot about the future of legal education.  Specifically, we interviewed Rod Smolla, the now-former President of Furman University, who had thought a lot about the subject during his time at Washington and Lee University School of Law, where he led the effort to revamp the third year curriculum.  We also blogged about the value of a legal education, and whether or not students are getting their money’s worth and the unintended consequences of the high cost of a legal education.  We even proposed some solutions of our own, in the context of lawsuits being filed against lawsuits over the issue. Well, President Obama thinks he may have the solution:  nix the third year altogether.  As recently reported by The New York Times, our Lawyer in Chief made some surprising remarks in a town hall meeting at Binghamton University in New York.  His remarks, like our own discussions, were made in the context of the larger discussion about the cost of higher education – both in dollars and potential opportunity costs.  For the most part, when folks are in school they are not working, or at least most are not working full time.

The President summed up the issues quite nicely in his brief remarks, as quoted in The Times:

On Friday, he questioned the utility of a third year of classes and suggested that students use their final two semesters to gain work experience. “In the first two years, young people are learning in the classroom,” Mr. Obama said. “The third year, they’d be better off clerking or practicing in a firm even if they weren’t getting paid that much, but that step alone would reduce the costs for the student.”

He acknowledged that eliminating a third year could possibly hurt a law school’s finances and ability to maintain a strong faculty. “Now, the question is,” Mr. Obama said, “can law schools maintain quality and keep good professors and sustain themselves without that third year? My suspicion is, is that if they thought creatively about it, they probably could.”

It’s a tough issue.  We will continue to weigh in on it as we see developments, and bring you the perspective of other experts on the issue.  We’d love to hear your thoughts, as well.

(Stay tuned for some additional thoughts on this issue tomorrow).

Judge dismisses Suit against Cooley Law School

A few months ago, we ran a series about the ongoing debate about higher education, including legal education – ts merits, cost-benefit analysis, and interviews with those in the field.  In those posts, we remarked that several lawsuits had sprung up around the country against law schools for misrepresenting data about their job placement numbers and salaries. One such suit was filed by a dozen graduates of the Thomas M. Cooley Law School, who alleged that they would not have spent the money to attend the school if they had known the truth about job prospects coming out of the school.  The plaintiffs sought $250 million in damages.

On July 20, 2012, the Michigan federal court where the case was pending dismissed it after the law school filed a 12(b)(6) motion.  A full copy of the Court’s decision can be found here [PDF].  As Judge Gordon J. Quist, the author of the opinion, notes, this dismissal follows the same result in a nearly-identical suit against the New York Law School.  A copy of that decision can be found here [PDF], and our friends at Above the Law make some great points about that decision in this post.

So why are these lawsuits failing?  Well, according to these two decisions,  the schools did not make false representations.  As the Michigan court quoted, “[a] plaintiff’s subjective misunderstanding of information that is not objectively false or misleading cannot mean that a defendant has committed the tort of fraudulent misrepresentation.”  Ouch.  Judge Quist apparently does not think much of the prospective students’ reasoning abilities.

Judge Schweitzer, the author of the case out of New York, reached the same conclusion, but for an opposite reason.  He called applicants to law schools “a sophisticated subset of educational consumers, capable of sifting through data and weighing alternatives before making a decision regarding their post college options.”  It appears that Judge Schweitzer believes these students to be very capable of weeding through the data, but too lazy to do so.  Again, not the best depiction of prospective law students.

And yet all is not lost.  The Wall Street Journal’s Law Blog updated its original post on the issue with a quote from Jesse Strauss, an attorney for the plaintiffs in the Cooley Law School case.  Even though Mr. Strauss seems ambivalent about appealing the decision to dismiss the case, he claims a small victory:   “It’s important to know what this litigation has helped to accomplish. Students applying to law school now have more and better information than ever before.”

True, the ABA has changed some of its reporting requirements to add some transparency, and even Cooley is reporting statistics differently.

The crucial question, however, remains:  if the value of higher education (and legal eduction) is potentially lower than expected or reported, can schools continue to charge more and more tuition?  And will the microscope that has been placed squarely on higher education result in lower enrollment down the line?  We’ll have to wait for the statistics, I guess.

Abnormal Interviews: Rodney Smolla, Lawyer and President of Furman University [Part 2 of 2]

Last week, in a series of posts, we analyzed the law school paradigm through a product liability lens.  Accordingly, we posed some questions to someone who has unique perspective on such issues.To that end, today, we continue our series, “Abnormal Interviews,” in which we conduct brief interviews with law professors, practitioners and other commentators in the field.  For this installment, we turn once again to Rodney Smolla, President of Furman University right here in Greenville, South Carolina.  As we noted in the first part of our interview with him yesterday, President Smolla is a former practicing attorney and former Dean of Washington and Lee University School of Law, where he worked to overhaul the school’s third year curriculum.  Yesterday’s interview focused on ethics and general practice issues, while today, we focus directly on legal education.

ABNORMAL USE: What is the goal of a legal education in your opinion?  Is it “to think like a lawyer?” Or is it to be prepared from a practical standpoint to actually practice law in the real world?

RS: . . . [I]t is not either of those two things because the practice of law is not either of those two things primarily.  The practice of law is not the manipulation of legal doctrine and legal theory and thinking like a lawyer very much because we all do that and we all do that equally well.  We all largely master that after the first year of law school; so the basic tools of thinking like a lawyer, which is the famous mantra that is listed forever and is enormously important, but 90 percent of that work is accomplished in the first year of law school.  The mechanics of law practice are important but easily learned in practice and to some degree usually learned even within law school.  But most lawyers are not paid because they are good mechanics.  Eighty percent of law practice, I’d argue, and the thing that you get really paid to do, and the thing that distinguishes the best from the average lawyers, from the substandard lawyers, is judgment.  Judgment, problem solving, advising clients, counseling clients, advocating for clients is almost entirely judgment.  What law schools largely ignored was that middle band of practicing law, which is everything.  It’s taking the intellectual part, the understanding of res ipsa loquitur, the understanding of strict liability standards, the understanding of failure to warn doctrine, the understanding of inherently dangerous products theory, all of which are relatively easy to master in their basic intellectual component in a first-year torts course, and maybe a second or third-year products liability course, all those legal doctrines, the theories, the economics behind different approaches, are intellectually interesting.  But most good law students get it and understand what res ipsa loquitur is or they understand the difference between strict liability and negligence, they understand assumption of risk, they understand those doctrines.  We don’t get paid by our client to recite those doctrines, nor do we get paid because we understand the rules of the local court system on interrogatories or request for documents.

What we get paid for is translating that into the messy picture of a product that explodes and injures somebody, the multiple parties that were involved, the economic pros and cons of settling rather than pursuing the matter, the human factors that will influence what we think a jury would do, what we think an appellate court would do, or the trial judge would do, the business interests of the client, the full range of matters that are implicated if we recalled this product or don’t, if we add this warranty or don’t, if we settle this case or don’t, the creativity it may take to come up with different ways to resolve the case, different ways to defend the case, or if you are on the plaintiff’s side, different ways to bring the case to the plaintiff’s side – that’s all judgment, creativity, relationships with client, relationships with opposing counsel, that is the art of practicing law.  It’s complicated, it’s messy, it’s heavily dependent on facts, heavily dependent on the human equation, and law schools need to do better in exposing students to that, exposing students to problem-solving, to creativity, to how you interact with clients, how you interact with opposing counsel, how you interact with judges.  People who have criticized either law schools that are entirely theoretical or law schools that are pointed to as being pedestrian because they are too practical, I think missed the boat.  What you want is to work on that middle range.  I think that law schools for a long time ignored that range but they are starting to move and you’re starting to see a transformation.  What will evolve from that is a healthy blend of the kind of classical first-year instruction that we have, basic courses, some building on that in upper-class courses, but a richer mix of about a third to a half of the rest of law school being more problem-oriented, simulation of legal problems, less concerned with teaching a lot of doctrine, and more concerned with teaching students how to translate that into the kinds of judgment that you have to make as a lawyer.  That’s a long answer but I hope that builds for you in what you want to do.

AU: As dean of the law school at Washington & Lee University, you overhauled the third year curriculum, perhaps to address these issues of judgment as part of a legal education.  Tell us some of the specifics that you implemented for the new third year program.

RS: The Washington & Lee program was very dramatic, and I was very proud of the law faculty and very proud of the law school that it had the courage to take the steps it did.  The decision was to make a dramatic statement, turning the entire third year into a simulation of law practice, for actual practice experiences through the clinics that the law school ran, to reduce the number of subjects and just have a few subjects in which the student would be intensely engaged in the kinds of things I have described, with an eye towards teaching judgment, professionalism, writing, argument, conflict resolution, and what it really takes to practice law at a sophisticated level.  So the decision was made to do that, and after I left, the decision was made to continue to do it.  So it wasn’t just something that I personally was a champion of that the school embarked upon and is committed to for its future.  I am very proud of Washington & Lee for having the leadership in American legal education to do that and the law faculty continues to make adjustments.  They find things that work well, things that don’t work as well, and as you would expect, it continues to always try to tinker and improve it.  But the basic notion of making that third year a true transition to practice, is something they remain committed to.

AU: Were there any models at other law schools that you looked to when Washington & Lee was designing its own program?

RS: There were many models for individual courses; so we found examples at almost every law school in the country of a particular professor who taught a course that adopted new sorts of principles.  There was nobody that made the commitment to turn the entire third-year experience into that and to make it mandatory.  Of course, there were many law schools that had heavily emphasized clinical experience and may have made clinics the entire experience of a semester, for example.  Because we wanted this to be comprehensive and be available for every part of the curriculum, clinics were part of the mix of the Washington & Lee solution, but were only about a quarter of that mix.  The other 75 percent were simulations of law practice that covered many areas that traditionally weren’t the kinds of subjects where you’d have law clinics.  So that was very innovative and a real instructive change.

The other point worth making is we wanted to take the law school and put it out into the profession and also bring the profession into the law school.  We developed a lot of partnerships with law firms, lawyers, and judges in the area, and by the area, I mean not just Lexington, but reaching all the way to Washington and Charlotte and across Virginia and even relationships sometimes with lawyers who commuted from other major metropolitan areas to be part of this, which was a real commitment on their part.  We said we don’t want you to be an adjunct professor in the traditional sense; we don’t want you to come and teach a law school course in a traditional sense, we want you to treat this as if these are young lawyers in your law firm that you are bringing in on a matter in which you were the lead counsel and these were your associates and you’re walking them through their first grade products liability case or their first bankruptcy proceeding.  They are working side-by-side with you, through the first draft of materials to begin to interview clients and do the sorts of things that you would do; so we don’t want you to come be a law professor, or mentor, in the shelter of a law school environment, where your students get do-overs, and there’s no real client injured.  We found that practicing lawyers in law firms loved doing that and were very generous with their time and willing to be part of it; often we were able to pair a law firm with a member of the faculty, and as a team, they would create these experiences.  It was a marvelous growth experience for our law students.

AU: Do you see that sort of curriculum being the future of legal education or do you think it will remain entrenched in the Socratic method and case studies?

RS: I hope it’s the future and I am going to continue to be a champion for it being the future.  Don’t get me wrong – I love the Socratic method.  I love teaching first-year students.  I used to be a torts teacher.  I loved teaching first-year torts.  I loved teaching constitutional law, but I think after about a year of that, or a year and a half of that, it’s outlived its usefulness and the students have mastered that and they know how to think like lawyers.  Then we need to help them grow in other ways.

The other thing I believe is there was once a time, maybe 80 years ago in which the law school curriculum covered just about every subject matter that existed in American legal practice but the law has exploded.  You could never keep up with legal doctrine, you could never keep up with the expanse of subjects, and even within a field, if you’re just talking about the regulatory environment, the doctrinal environment, even within something like products liability law, you could never hope to master all the intricacies of all of the doctrines and the evolution of products law within a particular band of a particular industry in law school.  So you might as well give up that, because that’s not the point of being a lawyer.  The lawyer can keep up with their one area or their few areas and master what’s going on there and they go to conferences, subscribe to services, and so on – you want students to learn, master areas on your own, keep up with it, but there’s no way you’re going to get all of that in law school and that’s not the point of law school.  The point is that it’s to help you develop these competencies, not some pile of law that’s in your head.

AU: Today, there is an ongoing debate about the cost of a legal education, or for that matter any higher education, the debt load that creates for many students, and the value of that education, i.e. the salary the graduates of the institution can earn with their degrees.  Do you have any thoughts on the subject?

RS: I think it’s a very healthy and important debate to have.  There are probably some nuances and some differences between that debate at the bachelor’s degree level or that debate as it applies to public and private universities that are educating college students for their first college degree and how it applies within the professional school level, medical school and law school, for example.  It’s probably important to draw some distinctions between those two arenas.

Overall, it’s a very important debate and I don’t think as a society, we’ve figured it out yet.  There are a lot of complexities.  My own thinking is evolving to separate the debate into two different types of questions.  One is the strategic question and the other is a more moral public policy question.

Strategically, from the perspective of universities and from the perspective of law schools, the pricing question is simply like any business question, what will the market bear?  Are there enough students that will come to this law school, at this price, to allow us to run at this level of activity.  A law school or a university can make those judgments based on how many applicants it has, how successful it is in filling its class, how much financial aid its clients have to give out in order to attract qualified students.  Those strategic judgments are not unlike any business judgment that any of our clients in the law would routinely make.  The answers to those strategy questions will vary depending on the school; some schools are more competitive than others; some schools will have tremendous applicant pressure because everybody wants to go there if they can, and value that and understands that those schools are successful in getting students jobs, and so they have the luxury of charging what the market will bear.  Other schools are less competitive, worry about filling their classes, maybe do not have the same success rate, and have to be very concerned about their price and the sensitivity of the price, although a lot of that is strategy, your position in the market.

Setting that aside, there is a giant moral dimension to this and that moral dimension is tied to the role education plays in our democracy, to our belief in the American dream, and upward mobility, to our belief that highly qualified students who could contribute to society, should go to college and go to law school if they want to be law students, and money ought not keep them out.  I believe in that personally as a value; I believe in that as a citizen.  I believe in that as a member of the profession.  So figuring out how to guarantee access to students from poor backgrounds and families from middle-class backgrounds where the cost of attending universities is approaching what it costs to own a home, in many cases more expensive than what it costs to own a home, is a giant issue facing the country.  Some might argue, well that’s the role of the public education, that’s what state universities are supposed to do, make education universally acceptable, and that’s why in-state tuitions are lower and that’s why we support in-state institutions with tax dollars, and state law schools fulfill that role in our society.  But I’m a believer that it’s also a part of the obligation of private universities and that private universities also fulfill a public function and have a public obligation.  I certainly feel that way about Furman.

I feel that Furman must remain a place that is accessible to students who grew up in poverty and students from lower-middle class background, or we’ll be failing the country and we’ll be failing society, we will be a less vibrant environment and a less rich environment, no pun intended, for our students.  So that means we have to work very hard to figure out how to finance that and how to raise the money you need and the scholarship money you need or manage our economic resources so that we can provide the scholarship aid to remain accessible.  I know that’s a long answer.  Value is not strictly an accountant’s calculation.  The value to the country and the value to an individual of a liberal arts education or a superb law school education that is rounded, rigorous, and develops a young lawyer in a whole sense, goes beyond simply their earning power and their ability to pay back loans.  That’s a fair part of the mix but there are so many other intangibles that make for life being fulfilling and I think that’s true of college.  I think being a lawyer is a wonderful life and very fulfilling for many members of the profession and that law school is still worth it, even as the market changes and the economics and the profession changes.

AU:  Setting aside the movie based on your book, Deliberate Intent, what’s your favorite legal movie?

RS: If it’s a legal movie, it’s an easy answer, To Kill A Mockingbird.  Not just my favorite legal movie, probably my favorite movie, period.  I just think it’s a magnificent movie.  It’s one of those rare examples in which the movie and the book are equally magnificent.  I think it’s one of the great works of literature in American history and the movie stands alone, on its own, with magnificent performances by everyone.  Atticus Finch is the most romantic, ideal vision of a moral, ethical, righteous lawyer that one could have.  I still cry when I see the courtroom scene in that movie.  So that’s my favorite.

BIOGRAPHY: Rod Smolla is a 1975 graduate of Yale University, where he was a member of the football team.  He graduated first in his class from Duke University Law School in 1978.  He is currently President of Furman University, in Greenville, South Carolina, a national liberal arts university founded in 1826.  President Smolla previously served as Dean and Professor of Law at Washington & Lee School of Law and at Richmond School of Law.  He also previously served as Director of the Institute of Bill of Rights Law at the College of William & Mary.  He is a nationally recognized scholar, teacher, advocate, and writer, and is one of America’s foremost experts on issues relating to freedom of speech, academic freedom, and freedom of the press.  President Smolla’s latest book, The Constitution Goes to College (New York University Press, 2011), describes the constitutional principles and ideas that have shaped American higher education.

The Cost of Legal Education and Unintended Consequences

Over the past few days, in our series on legal education and the idea of law school as a product, we’ve been examining legal education through the lens of product liability law.  We’ve discussed whether legal education is defectively designed, examined warnings that might be appropriate, debated the risk/benefit analysis of the cost of legal education, and explored potential remedies.

We want to explore another issue with you: the concept of unintended consequences.

Recently, the Wall Street Journal Law Blog featured a story about Yale Law School’s loan forgiveness program.  Before the recession, the program subsidized student loans, in full, for those graduates earning less than $60,000 per year in public sector jobs.  For those earning a larger salary, the graduate bore some burden, but the loans were still heavily subsidized.  Going forward, however, “due to more conservative budget projections as a result of the recession,” the program will only fully subsidize loans for those earning less than $50,000, and expect varying [read: additional] contributions on a sliding scale for those earning more.  As the article points out, several law schools have similar loan forgiveness programs.

What does this all mean?  As we discussed in prior posts, the cost of a legal education continues to rise, and increasingly, students are turning to loans to bridge the gap between what they can pay and what schools charge for tuition.  As tuition increases, the ability of students to repay the loans decreases, especially for those students who want to pursue careers with legal aid or other similar agencies or the government.

On top of that, schools may start to re-examine their loan forgiveness programs, as Yale has done, and they may not be able to be quite as generous as they once were.  The result may be a public sector in dire need of well-educated, experienced lawyers, with no pool of candidates to choose from because they can’t afford to work for such low salaries.

If you take this analysis to its most cynical end, then we wind up with a legal system in which access to legal representation is limited to those who can pay the lawyers who have to earn large salaries to pay back their student debt.  Follow me?  It’s a depressing prediction, but we are left with the enduring fact that lawyers who may owe Access Group or Sallie Mae close to $100,000, we can’t fulfill the Atticus Finch fantasy of working for vegetables.

Remedies for Unreasonably Defective Law Schools

So far, in our series this week on viewing law school as a potentially defective product, we’ve discussed whether the current law school curriculum is defective, or if the warnings about the cost of law school versus the job prospects are inadequate. If we assume one (or both) of those is true, what is the remedy?  How should students or graduates be compensated or made whole for a law school’s shortcomings?  This is not a mere academic exercise.  As reported by the Wall Street Journal Law Blog, lawsuits are being filed against law schools on a variety of theories.  Additional reports can be found here by the National Review and here by Yahoo! Finance.  A more recent, and comprehensive article also appeared in dritoday entitled “Educational Malpractice.”  Read it here.

Here are a few remedies that have been proposed.

1.  Cold Hard Cash. One idea might be a refund of the money a student paid to attend the law school in question.  That’s what the plaintiffs in the class actions filed against Thomas M. Cooley Law School and New York Law School seek; those plaintiffs want $200 million or more in refunds. Two Yale Law professors advocate a preemptive strike of sorts along these lines.  Why not, they write in a Slate article, pay a student back part of his or her tuition if the student quits after the first year of law school?  Here is what professors Amar and Ayres say about why this remedy might work:

A half-tuition rebate splits the loss of an aborted legal career between the school and the student. Each has skin in the game, so students will not go to law school lightly, and law schools will have better incentives not to admit students likely to fail.

The idea is to mark the end of the first year, after students have received their grades, as a salient decision-making point. At that time, students will have learned more about their legal abilities and inclinations. Law schools will also have learned more about each student’s abilities, and schools could now disclose how previous students with similar first-year grades fared after graduation. Students accepting the offer would be choosing to quit not just their school, but the pursuit of a law degree. Anyone who took the money but re-enrolled in another law school—within, say, five years—would have to repay the rebate.  This would guard against the risk that good students would take the rebate and transfer to another school just to reduce their cost of becoming a lawyer.

An interesting idea.

2.  More Pie. Have you ever heard the joke about the winner of the pie-eating contest winning more pie?  Well, if you like that tale of woe and pie, you’ll love this approach to the law school dilemma.  According to an article in The New York Post, the City University of New York School of Law is offering some students an additional semester at the school – on the house – if the school believes the student may not pass the bar examination on the first attempt.  Because the remedy for someone who is terrible at law school after three years thereof – you guessed it – is more law school!

3.  A Different Approach Altogether. If law school in its current form is untenable, what can be done to fix it?  Some law schools focus on this part of the equation, including Washington and Lee University School of Law and Baylor Law School, which offer curricula that, in part, defy the traditional, Socratic method/case study formula or emphasize practical training over the theoretical.  Perhaps the solution is to emphasize the practical side of legal education, and teach students, for example, what a set of discovery looks like before they enter the workforce.  This approach might provide graduates an advantage over their competition and make them more marketable in the workforce.

Whatever the remedy, it is clear that something has to change, and change fast.  Again, we look to a report on The Wall Street Journal Law Blog suggesting that the lawsuits being filed against law schools are more than bad press – they can be bad business too, and even affect a school’s credit rating.  Even if the students can’t get a school’s attention, maybe that will.

Warning: Your J.D. May Not Be Worth What You Paid For It

As product liability lawyers, we here at Abnormal Use acknowledge the existence of inherently dangerous products or items that, at the very least, can do cause serious damage if not handled properly or operated the proper fashion.   Accordingly, we often analyze whether there should be warnings on a product, and if so, what they should say and how they should say it.  As a society, we don’t always remove such products from the market, but we have decided that we want to make certain that consumers realize what they can do to protect themselves when using such products. Certainly, there is nothing controversial about those sentiments.

The same might be said for law schools. Most of us have been out of law school for some time now, and as such, we may have forgotten the price we paid to practice in our current profession (at least in those brief moments when we can forget those monthly student loan statements).  As this Associated Press article indicates, tuition at top private law schools can top $30,000 per year.  Very few students can afford that princely sum.  Furthermore, many students feel compelled to attend the best law school which will admit them, and thus, they may be less likely to be awarded scholarships from that institution.  So, these newly minted law students turn to lending institutions for financial assistance. As set forth in this article, the average educational debt for a student graduating from a private law school is $106,000, and $70,000 for those students who attended a public law school, an increase of 50 percent between 2001 and 2010.  The ABA Journal further reported that, according to U.S. News & World Report, in 2010, 85 percent of law school graduates from accredited schools carried an average debt load of $98,500.


Now, that wouldn’t be such an obstacle if new lawyers could practice for a few years and repay those loans with great ease and little fanfare.  But we all know that’s not the case, especially these days.

Problem #1:  Getting hired.  During these troubled/troubling times, there are fewer jobs for graduates of any educational institution, much less law school.  For some time now, we’ve read about law firms instituting hiring freezes, relying on lateral hires rather than gambling on recent graduates, or even laying off lawyers and other support staff.  We don’t need to spend more time on this cheery subject.

Problem #2:  Earning enough money to repay one’s loans in a reasonable amount of time.  That’s the real trick, isn’t it?  As law students, few of us suspected that we’d be able to wear this t-shirt immediately upon graduation:

On the flip side, as noble and idealized as it may sound, we didn’t want to live like we have been paid in vegetables, like Atticus Finch in To Kill a Mockingbird. According to the National Association for Law Placement, the median starting salary in 2010 for law school grduates was $63,000, as reported by the ABA Journal here.  That amount simply isn’t enough to confront the average student loan debt.

Jim Chen, dean of the University of Louisville Louis D. Brandeis School of Law, recently crunched the numbers and published an article entitled “A Degree of Practical Wisdom:  The Ratio of Educational Debt to Income as a Basic Measurement of Law School Graduate’s Economic Viability.”  A good summary of Chen’s article can be found at the Wall Street Journal’s Law Blog here.

Chen’s conclusion?  In order to attain a “good” level of financial viability (defined as being able to take on more debt and be “very financially secure”), a law school graduate must earn six times the amount of annual tuition he or she paid for school.  So the average private school grad (where the bill usually starts around $30,000 per year) must earn $180,000 per year salary to have a “good” level of financial viability.

We’d like to point out one thing in particular about the WSJ Law Blog article.  It states the median salary for lawyers was $113,000 in 2010.  This accounts, however, for all lawyers, no matter how long they have been practicing; it also tracks lawyer salaries, not law grad salaries.  For that, we would refer you back to Problem #1 – getting that law job in the first place.  It’s also a bit deceiving in that most of the lawyers who are paying this student debt are new lawyers, who would be earning the lowest figures of that median scale.  We think the more accurate figure, therefore, is the $63,000 figure.

So, if we were to design a warning for a legal education, what would it say?  One option:

WARNING:  You may not be able to pay these loans back during your lifetime.

We would argue, however, that this warning might not be adequate.  Instead, consider this stronger, more accurate warning:

WARNING:  Go to law school, and you may wind up bankrupt and still liable for the student loan debt.

The data supports the warning, unfortunately.  Reuters reports that according to Access Group, a bigwig in the law school loan debt industry, “law-school loan debts started rising in 2008 and peaked toward the end of 2010, when students were defaulting at twice the expected rate.” Indeed, Reuters recounts the story of one law grad who filed for Chapter 7 bankruptcy protection even before she graduated but is still stuck with the law school bill.  Under federal law, student loan debt is only discharged if the repayment would cause the debtor “undue hardship,” which, as the article points out, is extremely hard to meet.  In fact, the only account we found where law loan debt was discharged in bankruptcy was here, and involved a student who had failed the bar exam three times and a retiring judge who openly defied the District Court that remanded his decision.

A warning (of sorts) is in the works.  As reported here and here by the Wall Street Journal Law Blog, the American Bar Association is making changes to the way it collects job data from law schools, as well as the way in which law schools report job statistics, with the goal of increasing “clarity, accuracy, and accountability.”  No longer will law schools be able to count baristas at Starbucks as one of their “employed grads” within nine months of graduation; schools must disclose whether their graduates found jobs in the legal field.  The ABA also wants to create some consequences for inaccurate reporting, such as its recent public censure of Villanova University School of Law in August of this year for reporting inflated and inaccurate GPA’s and LSAT scores.  Perhaps the new requirements will stem the tide of lawsuits by grads and students against their lawsuits for misleading them about job placement numbers, as reported here.

Or maybe not.  After all, law schools allegedly train us to be lawyers.  What better on-the-job training, so to speak, than suing the institution that taught you everything you know about the law?

Legal Education: A Products Liability Approach

As lawyers, we have all been consumers of one common product: law school.  We know some attorneys who truly loved law school; we certainly know a number of others who detested it.  Interestingly enough, in our experience, a lawyer’s love or hate of law school has no bearing on whether or not he or she enjoys the actual practice of law. Why do we bring that up today? We here at Abnormal Use focus on products: their design, implementation, cost, and, sometimes, better alternatives.  This week, in a series of posts by our own Frances Zacher, we plan to scrutinize the law school formula as a product in the same fashion and debate the following questions:

Is law school defectively designed? Nearly early American lawyer practicing today is the product of a very traditional three year curriculum, from the first year Socratic method and standard set of classes focusing on the jurisprudence of no jurisdiction in particular, to a second year full of law journal responsibilities and moot court competitions, to a third year during which most students spend more time in job interviews, golf courses, and bars than in the law school classroom or the library.  Is there a better way?  Would a different model better prepare us for the practice of law itself?  We will talk to a few commentators who have attempted to address these issues at their own law schools.

Warning:  Your legal education may not be worth the price. Currently brewing in higher education and legal education is a huge debate centered squarely on the issue of return on investment.  What disclosures should law schools make to prospective students about job placement percentages, starting salaries, and the quantitative and qualitative value of a legal education from a particular institution?  Lawsuits are popping up all over the country over these very issues, and we will explore their merits and debate the issues that underlie them.

What is the appropriate remedy? If law school is defectively designed, or if the warnings are not sufficient for law school, what should be the remedy?  Plaintiffs suing law schools – and in some cases, the law schools themselves – are exploring a few different potential remedies, from tuition reimbursement to extra classes for free.  Are any of these remedies adequate?

By taking a products liability approach to these questions, we hope to gain some insight into what exactly is behind these big debates in legal education today, and perhaps, glance into the future and explore what law school might look like in the near future.  We hope you’ll share your thoughts with us along the way.