Professional Challenges

Thank you for the nice welcome! I hope to discuss several topics during my visit, starting with one that has already sparked considerable debate: Law School Transparency’s recent report on the 2015 State of Legal Education. For me, this report raises two deeper questions:

1. What type of responsibilities do we, as educators and legal professionals, owe to the students who apply to our JD programs?
2. If we owe professional duties to those applicants, how do we make sure that we honor those duties?

These questions, in turn, lie at the heart of a debate that involves all professional work today: Can professionals maintain both their autonomy and their commitment to serve in the interests of others? That challenge is bigger, I think, than many legal educators realize. I offer my current (and always evolving) thoughts below.

Commitment to Others. Professions distinguish themselves from other businesses, in part, by their commitment to serve in the interests of clients and society--even when the professional's self-interest points in a different direction. Howard Gardner and Lee Shulman, leading experts on the theory of professionalism, observe that the "primary feature of any profession" is "the commitment to serve responsibly, selflessly, and wisely." More specifically, the professional makes "a commitment to serve in the interests of clients in particular and the welfare of society in general."

That commitment, in my mind, describes both lawyers and legal educators. Legal educators, in fact, are double professionals. We are key members of the legal profession because we choose and educate most members of that profession. At the same time, we are part of a teaching profession that owes special duties to students. As legal-educator professionals, we pledge to serve the interests of our students, their future clients, and the society that grants special privileges to lawyers. We also commit to place all of those interests ahead of our own self-interest.

These are easy words to speak, but difficult promises to fill. We all have rent to pay, families to support, and professional ambitions to further. How do we, as professionals, assure that our self-interest doesn't taint the decisions we make on behalf of students or clients? What forces check our decisions? 

Autonomy. Checking professional behavior is difficult because of a second characteristic that professions share: Each profession enjoys significant power to regulate its own members. Autonomy is part of a profession's social bargain. Society gives the profession independence (as well as other benefits, such as an exclusive right to deliver specified services) in return for the profession's commitment to serve the interests of clients and the social order.

This, however, leads to a dilemma: Can professionals (or anyone else) be trusted to steadfastly put the interests of others above their self-interest? The problem is particularly acute because professionals define themselves as "people who put the interests of others ahead of their own self-interest." Even suggesting that a professional has favored her own interests is tantamount to accusing the professional of acting unprofessionally.

Yet it is very unlikely that all of us behave nobly all of the time. In addition to the pressures of self-interest, humans have an exceptional ability to justify their own actions. Most of us don't consciously twist the facts to justify our behavior; we simply see the facts in a way that fits our desires and self image.

Professionalism. How can professionals address this problem? The first step is to recognize the challenge. We aim to act in the interests of students, clients, and society, but we don't always succeed. We should always be willing to reflect on our decisions, probing whether they are consistent with our professional obligations.

Second, we must rely upon collective regulation. If a profession hopes to maintain its autonomy, it must regulate its own members. Collective governance, in fact, is a third characteristic of professions. This means that law schools can't ignore actions at other law schools; we have a collective obligation to assure that our profession acts in the interests of students, clients, and society. 

Finally, we need to talk among ourselves about the challenges of reconciling self-interest with the interests of others. Dialogue is a key way to identify, articulate, and cabin self-interest. If we can talk candidly about the interests affecting legal education--as well as the profession--we may be able to cope with them. More soon on applying this discussion to the LST report.

 

 

 

Comments

[Sy Ablelman]

The truth. Talk to any practicing attorney who is either underemployed, unemployed, or chasing a 5 bill DUI and trying to come up with a 4 bill Bronze level Obama Care premium and a student loan payment, month after month after month in a grossly over saturated legal market. Lets talk numbers. In Illinois alone, there are 92,000 registered attorneys and 95,954 people who are employed by car dealerships. Nearly every Illinois adult owns a car or two and will purchase several throughout their life times. All of those cars will need servicing and repair from time to time. How many times will the average adult need a lawyer and how often? Or just pop open any Yellow pages lawyer section and one is overwhelmed by the numbers of attorneys. I received a great education. However, since '06, when the market was deluged with new attorneys, it has been one financial struggle after another. Show your students my post. Or Third Tier Reality or Law School Lemmings or Law School Truth Center or any number of sites with commentary from practicing attorneys.

[Jojo]

How about two changes? First, law schools adopt a fiduciary duty toward students. This eliminates puffery, sophisticated consumer defenses, etc. Second, set full time, long term targets publicly. "We aspire to have at least 90 percent of our grads in ft, lt nonsolo jobs within 10 months."

[anon]

Another proposed change: make sure the people who run and teach at law schools know what it's really like being a lawyer. Also, provide admitted students with information on what their monthly loan amounts will be once they graduate. Thanks for all of your efforts.

[[M][@][c][K]]

Echoing JoJo:

First, deans (including asst deans, auxiliary deans, wingding deans) and law professors should be required to be a member of the bar in good standing, and after a reasonable period (say 18 months to 2 years) to be a member of the bar in the state where their law school is situated. Law schools consist of people, and those people need to be subject to professional discipline. Get disbarred, get fired should be the rule.

Second, we define the law school student relationship to include many of the same obligations as apply between a lawyer and client, including notably fiduciary obligations. The scam-suits were and are an ongoing disgrace to law schools - that they resorted to the caveat emptor defence, that court after court found that they had in fact deceived incoming students (that certain noted clowns have seen fit to defend that chicanery) is a serious problem.

Third, we require at least 80% of law school teachers to be "law professors," i.e., admitted to legal practice. Within that requirement we set two minimums - the minimum years of practice a full time law professor just have 4-5 sounds like a good number) and an average years of practice for faculty at a higher number, giving law schools a transition period in which that number slowly ratchets upwards to the target. Overall law schools need to put much more emphasis on practice experience amongst their faculty - it may be something that must be disclosed.

Fourth, if law school stays a graduate degree, we make part of admission criteria the idea that no-one can go straight from college to law school, but rather that there be preferably at least a 2-year gap between college and law school and preferably some employment history. I think this would lead to better lawyers, but also it would reduce the à défaut de mieux problem, which leads to so many miserable lawyers and screamers among partners. It also would mean that those applying to law school would be, one hopes, much less naïve.

Over the last couple of years I have found this forum remarkable, in the ethical shamelessness so many law professors have happily exhibited (and Prawfsblawg is pretty disgraceful too.) I think what has shocked me the most is that so many law professors have (with some it seems rare exceptions) been happy to be direct or indirect participants, or been unconcerned about the stain splashing on their own reputations. Maybe because I am a practicing lawyer, I take the "appearance of impropriety" principle more seriously than law professors - but I do, and so do most of my professional colleagues. All a law firm or a lawyer has to peddle is their reputation, and lawyer jokes aside, most of us are very careful of it. This forum at times has been a remarkable display of the indifference of many law professors to the concept of integrity (I'd add at least one dean to that list.)

[[M][@][c][K]]

I think I'd add one category - an important one, if law professors are going to continue to posture as doing research - relevance. Criticisms of law review articles as irrelevant piffle is for the most part fair. Unlike today, the vast majority of law review articles should and need be relevant to actual live legal issues - they should be "useful." And law professors whining about being ignored by the judiciary - well, if you don't want to be ignored, write something relevant. Similarly courses, especially seminar and upper level courses should be required to be relevant to legal practice by much more than an "- and the law" in the course title. Law students are paying an enormous amount of money per credit hour - requiring them to pay for a law professor's hobby or vanity project is disgraceful and something a practicing lawyer could or should not get away with.

Indeed a renewed focus on relevance could justify the current 3-year law school. Today, again and again you read transcripts and wonder at the ludicrous courses a new graduate took as a 2L and 3L and when you ask "did you take antitrust/competition" "employment" or any of a range of important subjects, find that they wanted to, but could not because the course was full and had to take silly-seminar a or b instead (or a course in a subject the professor transparently knew nothing about, there than his/her speculations.)

[Jojo]

As long as we are fixing and re-imagining legal Ed here, I'll toss in a few more suggestions.

First, the case method is a good way to instruct 1Ls and a really poor way to instruct 2Ls and 3Ls. There should be far more writing, including brief and pleading (and contract and loan and . . .) than there presently is. Contemplate what working lawyers do all day, and incorporate more of that into the last two years of the curriculum. It will obviously involve more grading, and it will not be fun for law professors. (But if it were easy and fun it would already be part of the current job. ;p)

Second, I don't know that law faculty appreciate that 0Ls have almost no experience in law and revere professors like the fount of law. From your mouths come the truth and the law. (Years later they see behind the curtain, but that's a horse of a different color). In your 1L classes, please use pleading, filings, and contracts. "This is a simple contract." "Here is a deed recorded in the Hamilton County clerk's office". "This is a summons and complaint. Let's walk through what's alleged." It will take one or two class periods to do, and it is very helpful. Heck, if you teach property, require your students to go to the clerk's office. If you call ahead, speak with the clerk, and get creative, you could probably make it an assignment that the try to record a dummy conveyance (perhaps the building). (What, they'll learn it on the job later? What about the one in three who get no such job?)

Three, to echo MacK, there is a disconnect between what needs to be researched and what law faculty enjoy researching. Hint, you are unlikely to break new First Amendment or Equal Protection or Due Process ground. There is an awful lot of paydirt, though, in the nuts and bolts of civil procedure, in state statutes and agency rulings, in many areas of federal substantive law. Think, "I want to write about law for lawyers and judges," rather than "I want to write about policy for law professors."

[Scott Fruehwald]

One of law schools' main purposes is to turn out ethical lawyers. Law schools cannot turn out ethical lawyers unless they are ethical themselves. Law schools and their professors must serve as ethical role models to their students.

[Bub]

I would be interesting to test out LST's school by school theories of what schools should have gone down and by how much. There is an extensive analysis of how admissions standards have changed, but the bar passage data per school they are using appears to be from the class of 2013 and therefore 2 years old.

A handful of schools have actually increased bar passage rates in the last couple of years.

[Kyle McEntee]

bub, that's coming in January, once we get the 2015 California school-specific bar passage rates. Note that we did not predict by how much rates would go down, just that relative change begets relative change.

[Kyle McEntee]

I should add that preliminary data do show some improvements at some schools. Some of this was predictable based on relative positive change between 2011 and 2012 that was undone by 2013 or 2014. Some other patterns have emerged that we have to look into as well.

One interesting improvement was Cooley in July 2015, despite a one point decline in median LSAT from 146 to 145 without an improvement in GPA (went down very slightly). Attrition did go up a by 1.5%, but that doesn't explain a 7.6% improvement in the bar passage rate. Perhaps Cooley changed its bar prep/academic success program. Or maybe Cooley was just too big -- the incoming 2012 class was almost 700 students smaller than 2010. Maybe it's just noise. Or maybe a combination.

[twbb]

That's definitely interesting, Kyle, considering their July 2015 Michigan passage rate dropped again down to 39%. I wonder if the rumors of low-ranked law schools trying to talk/cajole/bribe many of their students into waiting to take the bar apply to Cooley. Do you have the bar passage rate reported by jurisdiction? It would be interesting to know how close they are to losing accreditation.

[terry malloy]

"Maybe it's just noise."

that's the statement of an honest person analyzing data.

thanks for all you do, Kyle.

[Kyle McEntee]

twbb, look at first-time pass rates. It was 53% not 39% in July 2015 for Cooley.

[twbb]

Didn't realize you were referring to the first-time passage rate, but even in Michigan that rate declined from 55% in 2014 for Cooley, so it seems a little weird that their rate overall's gone up while in their home jurisdiction it's gone down.

If they've improved bar prep, then why didn't it help those who sat for the Michigan bar? I suspect it's either noise, like you said, or some issue with data collection and compilation.

[anon]

Mack, four to five years seems likes a high number, given that the current average is probably closer to two. Given that, I wonder if this part of your proposal is actually workable.

[anon]

Mack, four to five years seems likes a high number, given that the current average is probably closer to two. Given that, I wonder if this part of your proposal is actually workable.

[Sy Ablelman]

Nearly all of the above posters miss the point. I am going to paraphrase James Carville. "It's the economy, Stupid!" It's Jobs. It's enough work to pay back student loans and live decently Even a schmoo like me in 1990 had three job offers. Thank god nobody asked about my law school grades. They did steadily rise during the three years as I became acclimated to the thinking, reasoning and writing that is demanded by lawyers. What chance would I have today competing with top level students from Tier 1 schools applying for PD and Prosecutor positions? The lower level gub'mint jobs are now considered the Golden Ticket. The real problem is Sequester and underfunded gub'mint. Ronald Reagan is killing the profession from the grave.

[anon]

To the comment above, the average practice experience seems to be about two years, so asking for four to five is unobtainable. Also, maintaining bar memberships requires continuing legal education credits, which asks too much in light of other obligations. So perhaps the standard should just be bar admission.

[[M][a][c][K]]

I suggested phasing in a 5 year practice requirement for law professors. Admittedly, if the primary interest of law schools is to protect the current law professors, then requiring a period of practice that would mean real experience, and not the minimal activity that a junior associate in BigLaw heading for the exit will have engaged in, then of course it is a problem. But anon at 9:57, how much experience do you have?

That law schools have reached a pass where the average law school professor has less than 3 years experience - teaching in a "professional school" with no substantive professional experience is not only embarrassing, it is a demonstration of where law schools have chosen to travel.

[[M][a][c][K]]

As for the objection that maintaining bar membership imposes CLE requirements. You poor baby, you seriously object to CLE, that well known law professor money spinner, that little gig so many law professors like to get?

Yes, law professors should have to do CLE, and if they don't want to, then they can go teach sociology, knitting or something else, and give up the law professor salary premium.

If this sort of view is commonplace maybe the 5 year practice experience requirement should not be phased in, because there is clearly an immediate and urgent problem.