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August 18, 2011

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Dan Joyner

This is an excellent post and thought excerise. It seems to me that the graduates of the 1957 law school would be well trained to do only one thing - private practice. They would not be well trained for other jobs requiring a legal education that provides a more theoretical, normative understanding of the law and an ability to think outside the box about creating, interpreting and applying law. I'm thinking about jobs in government, NGO's, international organizations, academia, etc.
I wonder if one way to approach these problems of theory vs. practicality, importance of faculty scholarship, and overall cost of education, might be to have different law degrees offered by different law schools. So for example, the 1957 law school might offer the JM degree, which in perhaps 2 years would qualify graduates to take the bar and practice law. Other law schools might decide to base their curriculum, faculty hiring, faculty scholarship expectations, etc. around the offering of a JD degree, which would in 3 years provide not only the JM curriculum, but also an expanded curriculum, pedagogical and study approach, and faculty scholarly emphasis, which justifies the awarding of a doctoral degree instead of a masters degree. Students could choose the type of degree that they want and are willing to pay for. The degrees would of course have different market appeal for different jobs. JM degree students could succeed in placement in private practice. JD degree students could practice privately as well, but would also have market appeal and qualification for more "thinking outside the box jobs" like those in government, etc.

Leslie Friedman

Will Co57LS students appreciate the value of secondary sources when doing their research? Will they explore nuances in the law that are often elucidated in law review and journal articles? Will the professors at Co57LS be eligible for tenure? If not, will that also affect the attention paid to law review articles and other secondary sources? Will the students become less adept at crafting interesting legal arguments because there is less of a “liberal arts” approach to their research and, as a result, be less effective advocates for their clients? Will the graduates of Co57LS be relegated to filling jobs in an intermediate tier at law firms, somewhere between paralegals and those on the partner track? Will the no-frills approach signal a return to an apprentice-style, vocational education? Will there be different types of qualifying exams? And what might a variety of tiers mean for the gender and racial representation of lawyers in those tiers?

Alfred Brophy

Roger--thanks a ton for this. I tried something a while back here, which of course was less realistic because I don't have your expertise:

http://www.thefacultylounge.org/2008/04/the-economics-o.html

In your model tuition would be $20,000 per year, which is a whole big bunch cheaper than every private school I know of. But it's still not competitive with some of the less expensive public schools. I'm puzzled why amidst all the talk of the need for cheaper alternatives more people aren't considering schools like North Carolina Central. Tuition there is $10,400 per year. The total estimated cost for NC Central's law school (including tuition, room, and board) is $20,600 per year:
http://www.nccu.edu/formsdocs/proxy.cfm?file_id=894

One question: why is it called the Class of 1957 law school?

Colin Miller

Interesting idea. Franky, it sounds similar to the apprentice/reading law programs that some states still have. For instance, here is a brief description of Virginia's program:

http://www.vbbe.state.va.us/reader/readerrules.html

Length of Study. A law reader, whose application for enrollment has been accepted by the Board of Bar Examiners, shall study for three (3) calendar years. Each calendar year shall consist of at least 40 weeks, with a minimum of 25 hours of study each week, at least eighteen (18) of which hours of study must be within the confines of the Supervising Attorney's office in Virginia, either (i) during regular office hours between 8:00 a.m. and 6:00 p.m. weekdays, or (ii) at such other times outside of regular office hours when both the reader and the Supervising Attorney are physically present together in the office. The Supervising Attorney shall give personal supervision to the law reader for at least 3 hours each week. "Personal supervision" is defined as time actually spent one-on-one with the law reader for the exposition and discussion of the law, the recitation of cases, and the critical analysis of the law reader's written assignments.


I plan on guest blogging about some of these programs next month on PrawfsBlawg. Does anyone know anybody who has done one of these programs and how they have fared employment-wise?

Alfred Brophy

That's interesting you say this, Colin. Roger's proposal to my ears doesn't sound like that at all; it sounds like what I thought law school was like in the 1950s (except that there's more emphasis on externships and perhaps pre-trial lit and trial practice than existed in the 1950s).

roger dennis

Colin..my dear departed colleague Mark Feldman, who taught at Rutgers Camden and Maryland, read law in Virginia before he got an LLM at Harvard. Mark was a very successful clinical teacher and provocative, thoughtful scholar. Reading his work will give you a rich insight into a special gem of a law professor

Second Year Prof

I think one key part of the model does not work -- paying $100,000 and hoping to attract experienced practitioners. That salary would be less than starting associates at Big Law, so you would be self-selecting practitioners who already get paid less in the private sector, such as public defenders and prosecutors, or attorneys at the beginning of their careers. The academy already has difficulty attracting experienced transactional attorneys or civil litigators, and such a low rate of pay would discourage that even more.

Perhaps a better model would be to allow experienced attorneys to teach part-time and practice part-time? I suggest something more robust than the current adjunct model. Instead, attorneys would be trained as teachers, perhaps teach two classes a semester, be paid $70,000, and be encouraged to continue to practice part-time.

Colin Miller

Al, I think that is a good point. I guess that the point that I was trying to make was just that lawyers who "read the law" and hypothetical lawyers who attend 1957 Law School receive a much more practical legal education than lawyers who attend traditional law schools (and receive some mixture of a practical and theoretical education).

MinkHeel

Second Year Prof, I think you are underestimating the number of practitioners who would love to make this jump. Also, what would one consider an "experienced practitioner"? Five years of practice? 10? 20? I left after 11 years of practice for less than $100K. Money ain't everything.

MinkHeel

Colin, Larry Mann of Lexington, VA was a law reader and has had a very disinguished career.

Ben Barros

I don't think that the academy has a problem attracting experienced practitioners. I think that the current problem is that most schools don't have any interest in hiring experienced practitioners. It also isn't clear to me that the skills needed for non-private practice jobs can't be covered by instructors hired on the proposed model. One of the provocative and interesting points made by this post is the degree to which student tuition pays for scholarship.

Larry Rosenthal

This is a very thoughtful and provocative post. As someone who began full-time teaching after many years in practice, however, I do share Second Year Law Prof's reservation. In my view, a substantial period in practice is pretty much required to achieve the objectives of the 1957 Law School, as I have explained at some length here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1630574. That requires attracting mid-career attorneys who, if they are successful, command salaries substantially in excess of $100,000, and who are likely to have family obligations. With apoligies to MinkHeel, I very much doubt the quality of the faculty willing to leave practice and teach for $100,000 per year, especially in or near urban areas. The school should not have to go nearly as high as the salaries that elite professors today command, but I do not think $100,000 will do the trick.

Larry Rosenthal
Chapman University School of Law

Ben Barros

Larry raises the good point about cost of living, but again I disagree that there would be a shortage of candidates, perhaps even in the highest cost of living areas. Last year, I was the moderator of a discussion group for candidates with extensive practice experience. There were many mid-career candidates in the room that had very little shot of getting a job, and had few or no interviews lined up. Because of lack of scholarship, these folks weren't good candidates on the current market, but would be for the proposed school. To be clear, I'm not arguing against the current focus on scholarship. I just think that there would be tons of good people who would be interested in our hypothetical positions.

Ben Barros

Just to clarify, the discussion group I mentioned above was at the AALS hiring conference.

Alfred Brophy

So far I don't think anyone's answered Roger's question whether this model could get students. I'm thinking yes -- in large part because I think there are schools that aren't all that different from what Roger describes that are already getting students (and retaining good faculty). And they charge more. Might I pose a related question: how many schools do readers think are there that are pretty similar (except in cost) to the C1957CL?

Ben Barros

Al asks whether there are schools pretty similar to C1957CL. I don't think there are, because all schools maintain an emphasis on scholarship. As far as I know all ABA accredited schools have their core faculty teaching at most a 2/2 load, not a 3/3 load. There are quite a few schools that emphasize core subjects in the curriculum, but none that follow the hypothetical economic model. Would the model get students? Maybe. There are so many variables. First, almost all law schools are regional, so it depends on the local market. In Pennsylvania, for example, Temple and Pitt are two very strong state-supported schools that have relatively low tuition. Add to that the large number of established area schools, and a new school in the area that doesn't have Drexel money would have some challenges. Second, prospective students, like the legal profession that they seek to join, are very status obsessed. Students routinely turn down substantial scholarship offers to go to more highly-ranked schools. Students following this behavior would be unlikely to go to C1957CL even if it was substantially less expensive than the local competition. Third, an interesting variable would be the reaction of the practicing bar. The bar routinely gripes about law schools failing to prepare students for practice. I wonder, though, whether hiring lawyers would be willing to put their hiring where there mouths are, and hire well-prepared graduates from a non-pedigreed law school. If enough were willing to do so, the school might be a success. I have my doubts, though, about whether they would.

The 3/3 teaching load part of the hypo raises another interesting question. Many schools have recently gone to a 2/1 teaching load (or, in some cases, an even lighter load) in an effort to promote scholarship. If those schools had everyone teach a 2/2 load, and cut down their faculty proportionally, could they substantially reduce their tuition? If so, would that be a good idea? The students might think so.

Larry Rosenthal

It is worth thinking a bit about the student-faculty ratio. I am quite persuaded by the Carnegie Commission's emphasis on providing detailed feedback to students. Developing legal writing and other practice skills is particularly dependent on such feedback. Yet, the no-frills school has a relatively high student-faculty ratio and uses teaching assistants unlikely to have the necessary experience to possess high-quality legal writing and other practice-oriented skills. This may be a critical flaw in the model, much as today all too many 3Ls or newly minted lawyers teach legal writing using the blind-leading-the-blind model.

Larry Rosenthal
Chapman University School of Law

Orin Kerr

Fun post. But why not just have the whole program taught by adjuncts?

Also, I'm not sure how it's supposed to work with the faculty, though. If you hire a top practitioner and have the practitioner teach full time, the top practitioner won't be a top practitioner for long: Rather, he'll eventually be a teacher who once, long ago, was a practitioner. Is the idea to fire the professor after a few years, say 10 or 20, when the professor is just a teacher and no longer a top practitioner? Or do you keep the professor on board permanently, even though eventually the professor's practice experience is so distant and outdated that it doesn't matter all that much anymore? Or would you require the profs to practice over the summer to keep their skills fresh?

Ben Barros

This is my take on Orin's questions. On adjuncts, there is a difference between people who teach full time and who teach part time. People who teach full time are more devoted to legal education, and I would expect them (at least with some teaching experience) to be better teachers. Also note, for example, that Roger noted that professional faculty development will be focused on improving teaching, nothing else. On keeping skills fresh, I don't think the point of hiring experienced practitioners was for them to have cutting-edge skills. Rather, if a law school is not hiring with scholarship in mind, it does not have a very good excuse to hire faculty members who don't know anything about the practice of law. A case can be made that people with substantial practice experience will teach with a different emphasis than those with little or no practice experience. Defenders of the proposal would say that there is such a difference, and teaching by people with extensive practice experience is better.

Scott Boone

For a school that uses only adjuncts, see Nashville School of Law:
http://nashvilleschooloflaw.net/

For a school that uses a 3/3 load, see Lincoln Memorial School of Law:
http://www.lmunet.edu/law/

Three issues that I think are important to mention about the proposal:

1. ABA accreditation standards may block a lot of potential reform along these directions, particularly the directions mentioned in the comments.

2. State bars hold a lot of the keys with respect to reform and yet are rarely mentioned in legal academic discussions. (a.) The way state bars license new lawyers dictate what many schools emphasize (particularly schools that have students who will be great lawyers but who are not good test takers, i.e. lower LSAT students). That means more doctrinal, less practice-oriented. (b.) One example of how state bars can facilitate different methods, reading for the bar in Virginia has already been mentioned. Readers might also look at the Daniel Webster Program at UNH School of Law (formerly Franklin Pierce Law Center) for another example. http://law.unh.edu/websterscholar/

3. The vast majority of students choose a law school based on the two tightly intertwined criteria of law school prestige (ranking) and job placement. Most do not use cost as a consideration. There are schools that put a much heavier emphasis on practical skills and having students practice ready at graduation than "traditional law schools" and that cost less than many of those "traditional law schools" but students do not choose to attend those schools over higher ranked "traditional law schools." Part of it is status concerns and part of it is concern with job placement, since that is, by a fair bit, the most important criteria for hiring for most law jobs.

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