By Frank J. Macchiarola and Michael C.
Macchiarola
As law schools have come under fire
on many fronts, the growing cost of tuition has drawn the most attention. This
is not surprising, given the shrinking job market for lawyers and tuition
increases that have far outpaced the general cost of living for more than two
decades. Put directly, one of us, a pre-law advisor (Frank), tells
students that if they can’t afford the cost of a legal education, without
loans, they should think about other careers. This is generally a painful
conversation, but we strongly believe it is an honest one, particularly given
the lower-middle-class economic status of most of our students. Debt is
choking too many recent law graduates, bringing
anger and unhappiness into their lives. Further, the monopolistic
structure surrounding access to the legal profession, largely a result of the ABA’s law school approval
process, denies many the chance to become lawyers. Within the last week, another law school was denied
provisional accreditation, for reasons unspecified publicly, but probably due
to the failure to meet standards that would have required greater financial
investment (and hence higher tuition) in the enterprise.
For the other co-author (Michael), teaching Friedrich
Hayek’s “spontaneous order” each spring in a law school classroom is incredibly
ironic. Today, the American law school itself is anything but the product of a
free market, where orderly structure results from the aggregate action of
individual consumers. Instead, today’s legal academies are increasingly the
handiwork of overzealous regulators, compromised faculty and a confused federal
government.
In a recent New York Times article, reporter
David Segal explores the effects of the standards imposed on legal education by
its “government-anointed regulator,” the American Bar Association. Segal sheds a good
deal of light on the confusing and ill-conceived maze of regulations that the ABA requires of the
schools it accredits. Most notably, the article asks whether the ABA’s insistence on a
one-size-fits-all brand of legal education — to the virtual exclusion of
alternative forms — has impeded true competition. The only honest answer
to this is “Yes.” When competition is stifled, the results are terrible.
ABA-accredited law schools are regulated right down to the number of minutes students
must spend in the classroom. As Michael observed in a recent article, “such
uniform requirements leave substantially diminished room for price
differentiation, effectively forcing all consumers to purchase the luxury
model.”
Aside from burdening law students with higher costs, this
structure has proven particularly unfortunate for those who need a reasonably
priced legal service. While today’s homogenized “luxury model” of law school
includes lighter teaching loads, an unimaginative curriculum and cushy
facilities, those “improvements” have all been bought and paid for by runaway
tuitions. To absorb the cost, the federal government has ensured free-flowing
financing for the better part of two decades. Government efforts to grant
students “access” to a law school education are showing signs of strain. And,
there is evidence aplenty that, for too many law students, a debt-financed
education represents a stifling encumbrance, instead of the great investment
that society’s common sense has long advanced. More and more, newly
minted attorneys simply cannot afford to provide reasonably-priced services if
they plan to meet their incredible debt burden.
The ABA
is certainly not the only culprit in the strange brew that defines the shape of
today’s schools. In addition to the barriers created by the accreditation
process, the law school’s generally universal non-profit form and its governance
structure have resulted in faculty capture, allowed schools to make
non-economic decisions and discouraged behavior responsive to the needs of the
school’s students. As we suggested in a piece here, law
school debt has been abetted by destructive federal education financing
policies that have “irresponsibly driven students into significant debt
assumption.” Finally, in recent years, the proliferation
of law-school rankings has only discouraged innovation and rewarded
non-economic behaviors at the individual school level.
Like Segal, many have diagnosed a problem, but fewer have
offered a prescription. Undoubtedly, any serious reforms must bring with them
the attributes of a free market. Namely, reform must concentrate on delivering
value to the student consumer. And a certain amount of discomfort is likely to
result for certain constituencies in the process. Meaningful improvement
can come in several flavors. Below, we highlight four possibilities that
deserve serious consideration.
(1) 1) A two year
offering. The third year of law
school is not really necessary for lawyers.
In fact, since the admission process permits practice in all areas of
law, a two-year program could be shaped to meet practice areas where lawyers
might choose to specialize. The “one
size fits all” approach is costly and reform would be significant. And since
prospective attorneys must pass the required bar examination, many of the
ABA-mandated protections aimed at ensuring proper training are unnecessarily
duplicative.
(2) 2)
Distance learning. Distance learning offers
many possibilities in terms of cost savings and curriculum expansion. So far
the ABA has
been hesitant to embrace this innovation in any meaningful way. Other professions are embracing approaches
that save students time and money. Law schools should do so too. This is particularly so when schools in some
parts of the country are far from student populations.
(3) 3)
Getting back to
apprenticeships. In the 19th Century and into the 20th,
many lawyers earned their place as members of the bar though a system of
apprenticeship. The reconsideration of such a system of outright apprenticeship
(or at least some hybrid form) would be very critical in breaking down the
virtually limitless capacity of law school professionals to define standards
and ward off competition in the marketplace.
It might also make law practice available to those otherwise barred by
tuition costs.
(4) 4)
A derivative
solution. While financial derivatives have proven a convenient boogeyman in
our latest economic downturn, their application in the student-loan market
could go a long way toward aligning incentives. Financial derivatives could be
employed to tie costs of law school to the projected outcome of the student. In
essence, the structure would allow students to gain forgiveness from a portion
of their loans after a pre-set period of time if the student’s earnings fail to
exceed accepted benchmarks. Because the school might ultimately be on the hook
for repayment, costs would not routinely be passed along to the student unless they
were likely to return commensurate value.
While by no means offering an
exhaustive list, the point of this short piece is that there is no shortage of
proposed solutions to what ails the law school.
These improvements have been discussed for quite a while. Yet, progress
has been too slow. It is high time that the real experimentation begin in
earnest. For the legal academy, no goal is more important than ensuring that
the ability to educate and train fine lawyers long endures. In short, In the
words of Felix Frankfurter, “The law is what the lawyers are. And the law and
the lawyers are what the law school makes them.”
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Frank J. Macchiarola, Chancellor of St. Francis College, is the former Dean of Benjamin N. Cardozo School
of Law. Michael C. Macchiarola is a Distinguished Lecturer at the City
University of New York.
Prospective lawyers in New York do not need to graduate from law school to take the bar exam. New York already has the hybrid apprenticeship system advocated in the article. A candidate can attend law school for one year and apprentice in a law firm for an additional three years before taking the bar exam. The perplexing thing is that the authors of this essay, who are both New York lawyers, do not seem to know this. They are not the first I have heard to advocate an apprenticeship system without realizing that we already have one.