Why shouldn’t law schools be run as trade schools?
An abridged version of this essay originally appeared in City Journal on June 27, 2019 (here). Thanks to Real Clear Policy, TaxProf Blog (here), Instapundit (here), and the New York Post (here).
Like many things in modern life, we have become inured to the current model of legal education through inertia, because it is ubiquitous. We are simply used to it. Yet the prevailing academic paradigm—three years of post-graduate study, using Socratic techniques and the case method–has a relatively-recent pedigree. Well into the nineteenth century, most lawyers in America learned their craft the same way Abraham Lincoln did, by studying the law under the tutelage of a practicing lawyer, as a de facto apprentice. Remnants of this tradition survived into the 20th century.
Supreme Court Justice Robert
H. Jackson, who also served as Solicitor General, Attorney General, and chief
American prosecutor at Nuremburg, was one of the most accomplished lawyers of
his era. Yet Jackson was not the product of an elite law school. He passed the
bar in 1913 after studying with a lawyer–his uncle–in upstate New York.
Now, however, the concept of “practical” legal education is often greeted with disdain. Elite law schools, staffed with highly-paid faculty with narrow fields of expertise, and who often lack any meaningful experience practicing law, deride the practical model as the equivalent of a “trade school”—a lengthy bar review course. Such criticisms fail to answer why students who complete a three-year course of study in the law should have to take an additional–and intensive–review course in order to pass the bar exam. Isn’t learning law the raison d’etre of legal education? Expensive supplemental bar review courses are necessary because elite law schools do not see their mission as teaching mere “nuts and bolts”; the tenured “doctrinal” faculty leave that to the lesser-caste of clinical instructors and adjuncts, post-graduation cram courses, and on-the-job training by law firms.
These days, the professoriate
at the nation’s leading law schools enjoy a light teaching load, allowing
plenty of time for their primary mission: theoretical “research” and writing
scholarly articles in student-edited law reviews to which few outside of legal
academia pay attention. Law professors mainly talk to each other, in a
hermetically-sealed academic bubble. Not surprisingly, therefore, legal
scholarship tends to be divorced from black-letter law of use or interest to
actual legal consumers (i.e., clients) or practitioners. As Washington
University law professor Brian Tamanaha observed in his excellent 2012 book, Failing Law Schools, “Much of the
research produced by law professors is standard academic fare,
indistinguishable from scholarship one finds in political science, history,
economics, and women’s studies departments.” [1]
Critics have savaged legal “scholarship” dating back to Fred Rodell’s famous 1936 article, Goodbye to Law Reviews, [2] but—mimicking other disciplines—in recent decades the legal academy has grown increasingly theoretical and impractical, and prone to ideological fads. As Tamanaha notes, “the scholarship of earlier generations of legal academics mainly involved the analysis of legal doctrine…. That is no longer highly regarded scholarly work.” [3] It speaks volumes that analyzing legal doctrine is now regarded as passé at many law schools.
I don’t wish to reprise the
critiques of legal education made by Tamanaha, Walter Olson [4], and others [5], or to
retrace the pedagogical path leading to the present, [6] but only to point out
the shortcomings of the current model: high costs, rising tuition, mounting
student debt loads, poor skills training, uneven (and uncertain) job placement,
and an increasingly-politicized professoriate. Many
law graduates struggle to find suitable employment, even as some portions of
the country face a shortage of
lawyers. Despite paying lip service to the need for reform, most law
schools maintain the status quo. The potential “disruptors,” such as the
independent (but Catholic-oriented) Ave Maria School of Law and a small number
of for-profit schools, have failed to produce superior results, such as lower
tuition or higher bar pass rates.
Overall, legal education is doing a poor job, and the American Bar Association’s self-serving accreditation requirements hamper much-needed reforms.
On a recent trip to
Knoxville, I discovered an unusual school that offers a sharp contrast to the
prevailing model—Lincoln Memorial University’s Duncan School of Law. What initially
caught my attention was LMU’s prominent downtown location, in the historic Old
City Hall, near the campus of the University of Tennessee, home to the state’s venerable
flagship law school. I assumed an “upstart” school would lack establishment
respectability, but was surprised to learn otherwise.
Founded in 2009, the Duncan School of Law is named in honor of longtime Tennessee Congressman John J. Duncan, Jr., a Republican who served the Knoxville area from 1988 to 2019 (succeeding his father, John J. Duncan, Sr., who was elected to the same seat in 1964). The Duncan family represents a political dynasty in eastern Tennessee. Since 2015, a distinguished jurist, former Tennessee Supreme Court Justice Gary Wade, has served as dean of the law school. LMU’s facilities (leased from the city of Knoxville), affiliation, and leadership all evidence a high degree of establishment acceptance. What about academics?
I had never heard of LMU, but
it turns out that the non-profit liberal arts school, based in Harrogate,
Tennessee, was founded in 1897. LMU has grown dramatically in the past 20 years
under the leadership of Autry O. V. (Pete) DeBusk, chairman of LMU’s Board of
Trustees. DeBusk, a successful Knoxville businessman and LMU alumnus, has
overseen the establishment of numerous satellite campuses and LMU’s medical,
veterinary, and law schools, all created to further LMU’s mission of serving
the people of southern Appalachia.
LMU’s law school attracts
non-traditional students, emphasizes skills-based instruction, and seeks to
train lawyers who will service the legal needs of ordinary people in rural
areas of the state, primarily as solo practitioners or attorneys working at
small firms. Starting with the admissions process, LMU’s focus is preparing
students throughout their studies to pass the bar exam and become functioning
lawyers.
Now fully accredited by the
ABA, LMU’s law school has a relatively small enrollment (around 265 students),
with both full-time and part-time study. (The law school discontinued its
evening program in 2016.) By keeping enrollment low and emphasizing practical
learning, LMU has been able to deliver bar pass rates for its graduates at or above the state-wide average for
other ABA-approved law schools (unlike many other “lower tier” schools
elsewhere) and a claimed employment rate of 96 percent for the class of 2015.
LMU emphasizes rigorous instruction
in skills essential to law practice. For example, LMU requires three semesters
of legal research and writing (instead of the customary two), has a core
curriculum in which three-quarters of the students’ courses are required (as
opposed to leaving course selections during the second and third years of study
up the student), and requires six credits of experiential learning. Class
attendance is mandatory. Although LMU does not yet have a clinical program, its
students work closely with Legal Aid of East Tennessee (which is adjacent to
the LMU building), among other externship opportunities.
Moreover, although LMU is a
private institution, tuition is reasonable ($36,840/year for full-time students)—especially
net of scholarships offered to many students. (For a recent entering class, 97
percent of matriculants received some type of a scholarship and/or grant.) In contrast, Vanderbilt University Law
School’s tuition is $59,550/year, and the University of
Tennessee’s non-resident tuition is $38,312/year. LMU was named a “Best Value Law School” by Prelaw
Magazine in 2016. One way that LMU keeps its costs down is by having a
small faculty, all of whom teach multiple courses each semester, sometimes in
widely-different subjects, such as constitutional law and wills. LMU also relies on adjunct faculty–drawn
from Knoxville law firms–to teach specialized courses such as bankruptcy.
I do not mean to suggest that
LMU’s Duncan School of Law is better than its Tennessee counterparts
(which include the nationally-ranked Vanderbilt), or that its model is superior
to more typical schools—only that alternative approaches can deliver impressive
results at a much lower cost. The fundamental purpose of law schools is
to train lawyers to serve clients, only a small fraction of whom look to large,
high-priced law firms for their legal needs. The practice of law mainly consists
of helping ordinary people solve their legal problems, such as family law disputes,
defending criminal charges, or creating a will. Lawyering is in many respects a
trade, like being a plumber, electrician, mechanic, or welder.
Law schools (at least some of
them) should function as trade schools, and all schools should
focus more on practical training. The Ivory Tower approach so common in
academia often loses sight of the essential mission of legal education. Elite
law schools could learn some useful lessons from LMU.
The University of North Texas
(UNT) Dallas College of Law, a publicly-funded school that commenced operations
in the fall of 2014, follows a model similar to LMU’s. I will profile the UNT
Dallas College of Law in a subsequent post.
[1] Brian Z. Tamanaha, Failing
Law Schools 57 (2012).
[2] Fred Rodell, “Goodbye to
Law Reviews,” 23 Va. L. Rev. 38 (1936).
[3] Tamanaha, supra
note 1, at 56.
[4] E.g., his Schools
for Misrule: Legal Academia and an Overlawyered America (2011).
[5] E.g., Paul Campos,
Don’t Go to Law School (Unless) (2012); Mary Ann Glendon, A Nation
Under Lawyers 199-229 (1994).
[6] Stephen B. Presser, Law Professors: Three Centuries of Shaping American
Law (2017).