Shifting the Burden of Persuasion in Law School Regulatory Change

In my last two posts, I have talked about proposed changes to the regulation of law schools.  In the first, I talked about the possibility of moving some of legal education to the undergraduate level.  In the second, I talked about allowing students to take the bar exam after their second year of law school.

In this post, I want to address some of the practical impediments to achieving change in the system that regulates law schools.  The law school regulation system has two basic parts.  The ABA Section on Legal Education provides national-level accreditation standards.  State bar regulators provide state-level admission standards that law school graduates have to meet to practice law.  The two parts are typically linked together by state bar regulations that require graduation from an ABA accredited school to be admitted to practice.

It is impossible to achieve significant changes in legal education without making changes to this regulatory system.  Any proposed change to the regulatory system, however, would face at least one tremendous obstacle – it is a change, and people - including law school regulators - don’t like change.  The status quo therefore has a built-in advantage.

In some ways this aversion to change is perfectly appropriate – we don’t want to change just for change’s sake.  There are often many proposed changes, and the proposals often conflict with each other.  Many proposed changes are deeply flawed.  We don’t want the process of change to be too easy.  On the other hand, too much aversion to change would lock us into a status quo that is imperfect at best.

I think we could make some tangible progress towards a better system of regulation if the regulators of legal education made a shift in the burden of justifying a regulatory change.  Currently, any regulatory change faces a heavy burden of justification.  If there are any doubts about the proposed change, the status quo stays in place. 

It would be better, I think, if regulators put the status quo to the same searching inquiry that is applied to proposed changes.  Proposed changes are often rejected because of hypothetical harms that could result from their enactment.  The status quo often results in concrete harms.  A good analysis of the status quo against a proposed alternative would measure the advantages and disadvantages of each.  Too often, the analysis never proceeds beyond the hypothetical negatives of the proposed alternative. 

It makes sense to have the initial burden of persuasion on the proponents of change.  If these proponents can show that the current system has substantial problems, then the burden should be shifted.  Perhaps the new burden should not be on the status quo, but at a minimum the burden should no longer be against the change.

Of course, I’m not talking about formal burdens of proof and justification here.  My point is that we should look as hard at the status quo as we do at proposed changes.  If the status quo is flawed, we should not be hesitant to at least try changes. 

Many regulatory changes could be made on a trial basis.  Fear of the unknown is a related obstacle for changes in legal education.  If we could try a proposed alternative on a trial basis, we could then have an informed basis about whether to keep, modify, or scratch the new regulatory approach.

The current system of bar examination timing is an example.  I’ve argued that the current system has serious flaws, and that moving the exam to the second year summer would have a number of advantages.  A state wanting to test the alternative method could try it for a few years.  Arizona recently did just this in allowing students to take the bar exam during their third year of school.  If it works, great.  If it doesn’t, they can reconsider.  Either way, they will have some actual experience to go on, and will not have let inertia prevent them from trying something new.

Comments

[Scott Fruehwald]

Ben,

Haven't the legal reformers met their initial burden through the Carnegie Report, Best Practices, and numerous articles? Haven't the legal education reformers shown how reform can take place through new casebooks, like those in the Carolina Academic Press Context and Pratice Series and the LexisNexis Skills and Values Series, and through innovations at law schools, like Washington and Lee's third-year experiential program or Harvard's problem solving seminar?

[Ben Barros]

Scott, I think so. It is still hard, though, to make major regulatory changes. There are a lot of reasons for this, but the reflexive "change = bad" makes it hard to move forward.

[John Thompson]

If the discussion about reform were really about taking the most logical steps towards optimal guidelines for legal education in light of current market realities, your analogy to a litigant's burden of persuasion would be more apt.

As things currently are, the better analogy is to a room full of high-functioning alcoholics at various distances from hitting bottom, and with the sloppier ones being handed the keys to drive everyone else home.

[BoredJD]

Thanks for this. It almost seems at times like being able to articulate "any coherent justification" for a rule shuts off debate. I can't think of any good reason why an adult who is allowed to borrow upwards of $200,000 for a legal education should be prevented from working more than 20 hours a week while a full time student. But that's an ABA rule.

[Ben Barros]

I just deleted an off-topic comment. I'm not trying to censor anyone, and I note that this comment has been left on other threads here. I just want to keep the comments in this thread on-topic.

[Derek Tokaz]

The problem with the current accreditation standards is that they're supposed to guarantee a minimum quality of education, but instead establish a model law school. It's not a terrible model, and it's fine that many schools use it. The problem is that every school is required to use it.

A 2-year program where the second year focuses on skills training and core bar exam subjects would be prohibited.

A 3-year program where a student can fill up the second and third years with classes like Law and Literature, Law and Film, Ethics in Literature, The Book of Job, The Trial of Jesus, Resolving Internal Conflicts Within the Democratic Party, and of course, The Magic Mountain, that's completely okay under the rules. Why? Because the rules don't care much about an actual minimum quality of education. They care about the form, and 2 years = bad, 3 years = good.

[Scott Fruehwald]

Derek,

Why do law students take these courses when they add nothing to their education?

[MS]

"It is impossible to achieve significant changes in legal education without making changes to this regulatory system."

It seems to be that one of the biggest problems with law schools--the outrageous tuition relative to the ultimate financial benefit--is completely within the power of law schools to address. I understand that shortening programs from 3 to two years probably cannot be done without changes in the regulations. And this is certainly something I think would be a great idea. But I also believe that tuition could be lowered immediately, unless there is a plausible explanation of why law school is more expensive now per capita than it was 20 years ago (thereby explaining why tuition has risen so much more rapidly than inflation). Indeed, I would guess that the ABA could not force you all to do this if it wanted to.

[Ben Barros]

MS, fair enough. There are some things that law schools can do on their own. My own personal take on tuition is that it is going to be very hard for law schools to reduce tuition dramatically in the short term - cost structures can't be changed overnight. There are a lot of practical impediments to lowering tuition, including the perverse phenomenon of applicants equating higher tuition with higher quality (though this may be more of an undergraduate school issue than a law school issue). My own modest short term goal, which I have raised in various contexts in my home institution, is to at least keep tuition increases below the rate of inflation for the foreseeable future so that the real cost of tuition will go down over time. Even this might be hard because of the budget pressures that schools will face with declining enrollment. The unfortunate truth is that one way to balance the budget with fewer students is to charge higher tuition. Competitive factors and the wide use of scholarships might mitigate the real costs of this dynamic for some, but not all, students.

The tuition problem isn't just a law school problem. Costs have increased at an unsustainable rate throughout higher education for a long time. My kids are 9 and 11, and I shudder to think what tuition will be when they get to college.

[Ben Barros]

I'd add that the regulatory structure contributes to the cost of legal education. But I don't think these regulatory factors account for the constant increases in tuition at above the rate of inflation.

[Derek Tokaz]

Scott,

I didn't say that they add nothing to a student's education. My point was that the accreditation standards focus more on the form of education rather than the substance. Aside from the traditional 1L curriculum, and professional responsibility, the Standards don't really care what you study in law school. You get out in the same amount of time whether you spend that time studying Evidence and trial skills, or in a Jane Austen book club.

So, if it doesn't really matter what courses law schools offer, or what courses students take, by what rationale does it matter how long they do it for?

And to get to your question, why would students take classes of let's call it dubious or uncertain value? Because maybe they're fun. Maybe they're taught by a name-brand professor. Maybe the topic is a sort of hobby interest. Maybe the classes they would prefer are either over enrolled or have scheduling conflicts. And maybe they just think the class will be easy and are just trying to get their paper with the least misery possible.

[MS]

Professor Barros,

I do appreciate your efforts to address tuition at your school, I am sure we could use many more educators like you. As for your comment about the cost problem spreading across higher education in general, I believe it's spot on. The tuition rates are out of control--and really for the same problem: near unlimited access to student loans. I think really this is the ultimate reason--though not necessarily the culprit--the tuition spikes have continued. Unfortunately, the unmitigated money-seeking of the schools themselves is the culprit, but being that this is the US, I think we should have seen this coming. I believe that legislators are becoming privy to this and the idea of linking educational loans to results is becoming politically attractive, so hopefully we are in the later stages of this nightmare. So hopefully by the time your kids go to school, there will be some balance restored.

As a recent grad and (luckily) a practitioner, I would strongly oppose any argument that the third (or even most of the second) year of law school does anything to add to your practice abilities. And any argument that these extra classes improve students in some intellectual capacity (read: "thinking like a lawyer") is weak at best. Just my two cents (and who I am), but I bet there would be a lot of people outside academia that would agree. Reading your post, I don't think you disagree, but as someone maybe a little closer to the practice end, I though I would chime in.

[BoredJD]

Derek- I can think of one very obvious reason at my law school- those classes tended to be seminars graded on a 25% A, 33% A-, 33% B+ curve, instead of the marginally more demanding "lecture" curve.

Another reason is that it's not like the core lecture courses have immense practical value in terms of teaching you a single practice area. You don't nearly drill down far enough in, for example, corporations, to give you enough knowledge to pass the bar, let alone do commercial litigation or transactional work. The substance of the class is definitional.

[Scott Fruehwald]

Derek,

I understand your point, and I agree with you. The ABA should allow law schools to experiment.

My point is that law students are part of the solution. If certain classes are not best for your education, don't take those classes, even if they are easier, more interesting, or an easy A. If no students take those classes, they will eventually disappear. The same thing with tuition. Go to the cheaper state school. With the decrease in applicants, those schools with lower tuition will do better, and those with higher tuition will have to lower their tuition. Simple economics; supply and demand.

I do disagree with you that the third year of law school should be eliminated. Law students are not ready to practice after only two years and reducing law school to two years will create even a bigger glut of law school graduates. However, I do think that the third year needs to be changed. The Washington and Lee third-year experiential program is a good example of what can be done.

Changing legal education needs everyone, including law students. You can't just sit on the sidelines and wait for change. Of course, a good example of doing something is your LST website. You have accomplished a lot with transparency. We now need to do this in other areas.

[Ben Barros]

MS, thanks. I agree with you that student loan availability is the driver of the problem. As long as students can pay, there are a lot of institutional dynamics that lead to schools spending more money, generally for defensible (if not essential) reasons. A related point is that when we worry about cost, we might want to look more at average debt loads rather than tuition sticker price, because there can be a big difference between real and nominal tuition. Student debt loads are what I worry most about. As do a lot of other people in legal education.

I'm with Scott on the third year. Law schools should be able to defend every part of the enterprise, including the third year. And justify the expense of all three years. Unsurprisingly, I believe in the effectiveness of education in a formal law school setting, and I think we could better prepare students for practice than we do currently. I think it is good, though, for people who are skeptical of the third year to keep pushing on this point.

[MS]

Mr. Freuhwald,

I apologize but I must disagree on pretty much every point you make in your last post.

"My point is that law students are part of the solution. If certain classes are not best for your education, don't take those classes, even if they are easier, more interesting, or an easy A. If no students take those classes, they will eventually disappear."

Speaking from experience, most law students don't really know what is best for their education. This is because they are taught by law professors that have little practical experience (and therefore don't know what is beneficial for grads that will actually practice law). Law schools have shown little concern with what makes graduates practice ready. But more importantly, you your assertion assumes a false dichotomy. Your apparent assumption is that 3rd year law students have the choice between classes that are not the best "for their education" ( by which I assume you mean their post-grad legal career) and classes that are "easier,more interesting, or an easy A."

This just is not the case. The fact of the matter is, the 3L choice for most is the following: take classes that add marginal intellectual value (and little to no financial value) to your education--or do not graduate, get your license, or become a lawyer. Given the choice between getting the hell out of law school with less debt, and taking the 3L classes, I would have to say the average law student would take the former.

"The same thing with tuition. Go to the cheaper state school. With the decrease in applicants, those schools with lower tuition will do better, and those with higher tuition will have to lower their tuition. Simple economics; supply and demand."

This assumes that prospective law students are (1) rational decision makers and (2) law schools don't misrepresent their employment and/or tuition information. Both are bad assumptions.

"I do disagree with you that the third year of law school should be eliminated. Law students are not ready to practice after only two years and reducing law school to two years will create even a bigger glut of law school graduates."

At the current rate, law students are not ready to practice after three years either. There is simply nothing that law school teaches that needs to span 3 years. But unfortunately I can't prove a negative, so if you can provide any shred of evidence that a 3rd year helps grads, I would be more than willing to listen.

As far as your argument that reducing the degree to two years would increase the glut, I simply do not understand this argument. Sure, if the curriculum was changed this year, we would have two graduating classes of law students (assuming unrealistically that 3L's would simply get a get out of jail free card to take the bar). Past that, we would still have one graduating class per year--and if the current rate of graduates is maintained--the same number of grads each Spring (or if you are Cooley, the same number of grads each Spring, Summer, Fall, Christmas, Hanukkah, Kwanzaa, Monday, Summer Solstice, and St. Patrick's Day).

Unless there is a rush of applicants, and the schools respond by increasing class sizes, shortening length of the degree won't increase the current glut.

And let's be honest--can we--if schools (i.e. you) were worried about the glut of attorneys, guess what, they could just graduate fewer attorneys. But they don't, because they need the money--now more than ever.

"Changing legal education needs everyone, including law students. You can't just sit on the sidelines and wait for change."

Then you go on to cite LST "doing something"about the scam. This quite frankly is insulting. The fact that you assert that law students have any power to modify the state of legal education is simply delusional. The only power that students have is to vote with their feet--and their are doing this at a rate that should terrify most law schools. But once they are in, to say that they can do much to change the system is simply false. Again, I can't prove that enrolled law students can't affect the system, but I would welcome any thoughts on how they might (other than dropping out or taking the more "valuable" classes or the "interesting" classes.)

[MS]

Sorry, typo in the last paragraph: should be "they are" not "their are"

[higher ed staff]

One thing that might push us towards a Two Year JD is to place the burden on the defenders of the Three Year JD to justify the third year, particularly in light of the cost of that third year. If students are borrowing $20-$70,000 for that third year, what are they getting in return? Why not let the market determine if law schools are providing sufficient value for that third year? If that value does indeed exist, students can always respond by choosing to pay for that extra third year.

Here's a thought exercise that might help three year supporters reconsider their position. If that third year is so essential to legal education, what's your argument against a fourth year of law school? Shouldn't we make that compulsory too? A fifth year?

[Derek Tokaz]

Scott,

You've brought up a lot of topics here, so I'll see if I can go through them one by one.

First, because this is the second time in two comments that you've ascribed to me a position I haven't taken in this thread, I'm going to start with "I do disagree with you that the third year of law school should be eliminated." What I said was not that the third year should be eliminated, but that so long as it doesn't matter what you take in that third year, the ABA has no justification for requiring you to be there.

Second, even if law students are not practice ready after two years, so long as the third year doesn't do much to ensure that they are practice ready, there's really no justification for it.

Third, reducing law school to two years will not result in an increase in new lawyers. It will lower costs, and lower costs will increase applications, but that doesn't increase the number of new lawyers on the market. Let's be perfectly clear, the only thing that increases the number of law school graduates is law schools. So, when you say that reducing law school to two years will make the oversupply of grads problem worse, what you really mean is "Law schools can't be trusted to control themselves in the face of 20-somethings waiving their FAFSA forms."

Fourth, I'm generally in favor of converting the third year into a externship program, so long as the costs to the students are proportional to the costs to the school.

Fifth, I do think students need to be pro-active when it comes to choosing and demanding better classes, and making smarter enrollment decisions. But, I also think that their responsibility needs to be seen alongside the schools' responsibility. Schools can either say their hands are tied by the whims of fresh college graduates, or they can show some leadership on the issue. And if you're trying to train the future leaders of America, maybe it's a good chance to be a role model.