The American Law School: Crisis and Opportunities

in the 21st CenturyLarry Catá Backer

W. Richard and Mary Eshelman Faculty Scholar

Professor of Law and International Affairs

Pennsylvania State University

Program Prepared for Graduate School of Education

The University of TokyoDr. Hideto Fukudome

18 March 2016

Background• American legal education in crisis

• Admissions of JD candidates down• Traditional high prestige jobs down; markets shrinking• Effects

• High tier schools (one may fail)• All schools: terminations, shrinking class size the pressure of ranking• Criticism of for-profit law schools

• Fear—the top schools may thrive, the rest will not• Many surviving only through substantial subsidies from central university funds

• Death spiral?!

• Attacks on academic freedom and tenure

• Searching for Solutions• Return to “Eden”• Transformation of model

Outline

• It is in that context of crisis that one can understand the realities of legal education in the United States• Traditional foundation

• Challenges• Conceptual

• Financial

• Political (no longer center of elite training and a signal that American style rule of law framework may no longer be the “gold” standard

• Roadmap:• -Concepts of professional legal

education

• -Integration between knowledge creation and knowledge application

• -Curricula and teaching methods

• -Accreditation by ABA

• -Student admission and financial aids

• -Graduate placements and career supports

• -Relationship and partnership with legal professions

• Internationalizing the curriculum

Concepts of professional legal education• Educating Lawyers

• Challenges• Doctrine versus theory versus experiential learning• Training lawyers for practice or training in the law• Non-JD programs

• Advancing Knowledge in the Profession• Challenges

• To whom is knowledge production directed? Bench/Bar; Other academics; Publishers• Outside prestige markets or an integral part of the legal system

• Academic Law as a Discipline or Science Within a University• Challenges

• Inside prestige markets; scholarship about normative standards in which law serves as an instrument

• De-centers the discipline of law for jurisprudence

Integration b/w knowledge creation and knowledge application• Highly contested

• Knowledge Creation and pedagogy• Writing for advancing knowledge of effective teaching

• Low prestige except across a narrow range (eg Journal of Legal Education<)

• Knowledge creation and the Bench-Bar• Traditionally the highest aspiration• Tied legal academics to working lawyers and courts

• grounded in traditional relations in common law conceptions of law system

• Doctrinal scholarship; • Integral to aiding in the understanding, interpretation and application of Judicial decisions and statutes

• Knowledge Creation and prestige markets for academics• By 21st century the highest form of knowledge creation for academic lawyers• Focus on theory rather than doctrine• Prestige markets in publishing venues and peer reputation• Abandon old relationship with lawyers and courts

Curricula and teaching methods• Traditional

• Focus on core common law courses and a limited number of courses on important legal fields• Statutory law and administrative law sub fields of study;

• law in the courts primary• Training the function of law firms

• Contemporary• Primacy of Common Law challenged from “Academic” and “Practitioner” Factions

• Academic Faction• Theory courses became more important• Legal Instrumentalism: Law an instrument of politics, economics, etc. (law and economics, etc.)• Interdisciplinary popular

• Practitioner Faction• Experiential learning as law firms retreated from training function• Socratic method challenged• Research and writing focus

• Future Challenges and Potential Changes• Common Law de-centered--Experiential courses moving to the center• Legal writing and research—practice ready lawyers the pedagogical goal• Theory retreats, but not legal instrumentalism• Objectives based teaching; Teaching to markets (flexible faculty; pressure on tenure).• De-centering faculty--the new pedagogy

Accreditation by ABA• ABA Oversight firmed up by middle of 20th century• Challenged by government in late 20th century; Federal Government

seeking greater control• Control tends to exert strong inertia on changes especially in face of crisis• But flexibility also increases potential for abuse by instittuions

• Attack on tenure; low value high price programs, etc.

• ABA accreditation still critical to qualification to sit for bar exam in most jurisdictions • ABA accreditation and periodic (7 year) reviews• Review of non-JD programs for effect on quality of JD program

• Process (http://www.americanbar.org/content/dam/aba/publications/misc/legal_education/2013_revised_accreditation_brochure_web.authcheckdam.pdf)

• Application after 1 year of operation before provisional approval• Full Approval 3 years later:

• Substantial disclosure report• Site visit--must demonstrate that it is in full compliance with each of the Standards• Correct deficiencies

Student admission and financial aids• Ground zero of the crisis in legal education on the supply side

• Student LSAT takers going down• Applications going down• Fewer elite students looking at law as a viable option

• Challenge• Student GPA and LSAT scores central to rankings• Student tuition essential for economic viability• That contradiction has produced crisis as schools must decide whether to keep their

standards up and reduce student size or stay solvent and reduce their electivity and rankings• Reducing tuition (discounting as a incentive)• Heavy marketing• Focus on students with the “rights” numbers profile

• Consequence-Internationalization as a Revenue Source• Foreign students viewed as “make up” revenue• Abuse—increase profit margins by developing lowest cost system at highest price• Growing push back from students who want more services or rational curricula

Graduate placements and career supports• The other side of the student aspects of the crisis in legal education ion the

demand side• For JD Students:

• Effectiveness of traditional placement strategies under pressure• Traditional markets for lawyers has been shrinking• The number of graduates was increasing• Tuition was increasing• “Target” positions essential to contemporary model remains the focus of tuition and

placement (prestige) model• They pay enough to support loan repayments for high tuition• Reduction in high paying jobs places severe downward pressure on tuition

• For international Students• Home placements may be affected by changes in ranking and reputations of host

institutions• More difficult to acquire jobs/internships in host state• Career support less available

• as budget pressures shrink placement budgets with shift toward JD placements

Relationship and partnership with legal professions

• Effect of vertical stratification of law schools • Relationship with bench and bar

• Quantity/quality depends on status of law school and status of judge• Division between theorists and doctrinal lawyers; between

• Relationship with academics across disciplines• Tends to focus on academic lawyers and the JD +PhD segment

• Effect of vertical stratification within law schools• Tenured faculty • Writing faculty• Clinicians

• Effect on internationalization of law studies• Stratification affects the quality foreign student interactions• Composition of internationalized faculty will determine the focus of

interaction

Internationalization of Curricula• Hot issue through the Great Recession of 2007-10

• Less centered in discussion as law schools respond to crisis

• Five Principle Methods of internationalization (and of integrating foreign elements/students) into curricula:• Integration Model

• Refocus the educational and research hub of the law school from the national to the transnational level to the greatest extent feasible.

• Aggregation Model• International and transnational issues are segregated but emphasized among areas of study as one among

equals law—like labor, corporate or tax law.

• Segregation Model• Law school creates an administrative device that serves as the institutional bases from which all international

and transnational programs can be developed, offered, assessed and participate in the education and research mission of the law school.

• Immersion Model• Basis is idea that foreign law is learned in situ; internationalization through partnerships with foreign law

faculties.

• Multi-Disciplinary Department Model• Two approaches:

• Self-contained but porous unit of the law school• Autonomous unit with connections outside the law school.

The Future? Institutions• One size fits all law school model will disappear

• Vertical stratification elite versus non-elite schools• Objectives and methods of legal education differ• Greater emphasis on training• Interdisciplinarity may go to elites

• Professionalization of management and autonomy from academic cultures• The professor administrator will disappear as cultures of management arise• Greater convergence of managerial styles and distance between faculties (now

employees) and managers

• Further Stratification and functional differentiation among academic lawyers• Tenured faculty focus on academic work• Clinicians and training lawyers focus on bench/bar doctrinal work

The Future? Curriculum/Internationalization

• Place and value of scholarship will change• Theory for academic lawyers and elite schools• Labor market reinforcing work for the rest

• Relationship with labor markets will change• Look to increase scope of relevant labor markets• Not just training for “Big Law”

• International and graduate programs• Transformed as era of foreign student exploitation model runs its course• Distinct preferences for high value internationalizing models

• Partnerships and cost cutting • Developing autonomous transnational curriculum

Additional Reading• Philanthropy and the Character of the Public

Research University—The Intersections of Private Giving, Institutional Autonomy, and Shared Governance in Facilitating Higher Education Growth through Fundraising and Philanthropy 28-58 (H. C. Alphin Jr., J. Lavine, S. E. Stark & A.Hocke, eds., Hershey, PA: IGI Global, 2016) (with NabihHaddad) ISBN13: 9781466696648.

• Beyond Colonization—Globalization and the Establishment of Programs of U.S. Legal Education Abroad by Indigenous Institutions, 6 Drexel Law Review 317-370 (2013) (with Bret Stancil).

• Global Law Schools on U.S. Models: Emerging Models of Consensus-Based Internationalization or Markets-Based Americanization Models of Global Legal Education, 2 Revista de Educación y Derecho/Education and Law Review (España) 4:1-53 (April-Sept. 2011) (with Bret Stancil).

• Internationalizing the American Law School Curriculum (in Light of the Carnegie Foundation’s Report), in The Internationalization of Law and Legal Education 49-112 (Jan Klabbers and Mortimer Sellers, Dordrecht, The Netherlands: Springer Science + Business Media B.V., 2008) (2 Ius Gentium: Comparative Perspectives on Law and Justice (Mortimer Sellers series ed.) ISBN 978-4020-9493-4; e-ISBN 978-1-4020-9494-1.

• Human Rights and Legal Education in the Western Hemisphere: Legal Parochialism and Hollow Universalism, 21(1) Penn State International Law Review 115-155 (2002).

•

• General Principles of Academic Specialization By Means of Certificate or Concentration Programs: Creating a Certificate Program in International, Comparative and Foreign Law at Penn State, 20 Penn. State International Law Review 67 (2001).

Thank you!