A Conversation with Dave Hoffman

June 27th, 2016 / By Deborah J. Merritt

Dave Hoffman has posted a thoughtful piece about the future of legal education, in which he wonders whether legal educators, law graduates, potential students, and others can have a conversation about legal education rather than a rancorous debate. I think many conversations are already occurring offline, but I’d like to create such a discussion here by exploring a few of Dave’s thoughts in what I hope is a conversational manner.

Accreditation

Dave suggests radically decreasing the regulations that law schools face through the accreditation process, with the hope that this would “enable students to cheaply access the right to take the bar.” I’m with him on some of his principles, which I hope will make our conversation productive, but disagree with his conclusion.

I’m a big fan of relatively free markets (with the type of restrictions against fraud, child labor, and other abuses that most contemporary citizens seem to accept). In fact, I have advocated deregulating the legal profession itself. I don’t push that position very often, because it’s so unlikely to happen in the foreseeable future, but I think it’s the right result.

I see a problem, however, in deregulating law schools while maintaining restricted entry to the legal profession. Law school degrees, as Dave recognizes, are tickets to the bar exam. In some states, they are the only ticket. In others, they are (as a practical matter) virtually the only entrance path.

The price of those tickets reflects the value of entering a restricted profession. Our profession functions as a tournament guild; many players fail to reap the ultimate prize. Those who do, however, collect premium fees from their clients. Even those who obtain more modest positions probably reap some financial premium from the profession’s barriers to entry. For a recent discussion of this premium, see this paper by senior Brookings economist Clifford Winston and Yale Law student Quentin Karpilow.

Given that law is a gated profession, the gatekeepers hold substantial economic power. If the profession lowered barriers to entry, some law schools might compete to provide excellent preparation at low prices. But I don’t think that will happen as long as law schools control the tickets to the profession’s closely guarded gates. Instead, schools have an incentive to increase prices to the level where they claim the entire present value of the profession’s premium prices. Indeed, tuition probably would increase beyond that level as students vied for seats at brand-name schools or responded optimistically to unrealistic claims by lesser known enterprises.

For the record, I support loosening some accreditation standards–including the one that requires schools to award tenure. But I don’t think that wholesale deregulation of gatekeepers makes sense when we leave the gates in place.

More Lawyers

Dave also suggests that “virtually every person who participates in discussing law school online (and offline) agrees” that we need more lawyers to “serve low-income clients, . . . stem the tide of prosecutorial overreach, [and] . . . bridge the gap in intellectual firepower between private firms and undermanned government agencies” (quoting Elie Mystal). Technically, I agree–but let me unpack my agreement because we may disagree on a significant part of the statement’s connotations.

As the population and economy grow, we need (and employ) more lawyers each year. The population of people working as lawyers has grown in most years since 1978. That growth rate, however, has slowed considerably. And, although people and businesses might need more lawyers in the sense that they would benefit from more legal assistance, that need has to be balanced against all of their other needs. Few of us are able to purchase all of the goods and services that would benefit us; we have to make choices within limited budgets.

Given limited budgets and hard choices, I don’t think our society needs more licensed lawyers–beyond the limited annual growth we currently support. We do need more people educated to perform law-related tasks, and I think law schools and the profession should address that need. The profession needs to loosen some of its restrictions and academics need to think more broadly about legal education.

To begin this process, practitioners and professors should work harder to understand the range of legal needs and the type of educated workers who can address those needs. People charged with a crime (even a misdemeanor) need a lawyer–full stop. But many individuals could buy a house, draft a will, probate an estate, negotiate a contract, and perform numerous other law-related tasks with advice from a knowledgeable professional who is not a member of the bar.

Lawyers and legal educators tend to deride lawyer substitutes as inadequate. They also properly point out that many consumers don’t know when they would benefit from a real lawyer’s advice. E.g., the family situations that require a lawyer-level will aren’t always apparent to the family.

But those criticisms are cop outs. As lawyers and legal educators, we’re in the best position to design systems that will efficiently direct consumers to the level of legal assistance that best suits their interests. We can also help those consumers understand the trade-offs and risks; some people will not choose the highest priced, most comprehensive legal advice because they want (or need) the money for other purposes. We need to advise those people and create solutions for them, not scoff at them for holding different risk profiles than we do.

I wish more law schools would educate alternative legal providers, especially at the undergraduate level. Even as schools search for new revenue sources, they focus heavily on degrees and certificate programs designed for college graduates. Why don’t we use our expertise to educate more law-related workers in college? Those college graduates could address key legal needs.

If we broadened our educational mission to include college students, we could also increase the sophistication of future clients. I’d like every college graduate to understand more about our employment laws, intellectual property laws, Fourth Amendment rights, and other legal issues that will touch them directly. Law has become so pervasive that we need more law-literate consumers and citizens.

Law schools don’t have to create degree programs to contribute to this effort. Writing undergraduate textbooks and developing college classes would achieve many of the goals embedded in the statement that we need “more lawyers.” I’m devoting this summer to coauthoring an undergraduate text on the legal rules that govern the collection and presentation of evidence in criminal cases. My coauthor and I hope to educate future police officers, as well as future defendants. Neither group needs to know as much about the law as trial lawyers, but they (and other members of society) will benefit from a broader understanding of the system, its restraints, and its defects.

A Civilizing Force

Dave ends his essay by stating his view that “law school is, by and large, a really useful civilizing force that adds to our ability to live with one another in peace.” I agree 85%! (A small part of me worries that some of our educational practices contribute to the polarization of debate in our society. And we may not be as inclusive, in a variety of ways, as we aim to be. Still, I largely share Dave’s enthusiasm for our educational program.)

But if legal education is a civilizing force, then why do we reserve that experience for a small number of college graduates? Why don’t law schools teach more courses, lead provocative discussions, and encourage critical thinking among college students? Plenty of college professors pursue those goals but if legal education is special (as many of us believe), then I would share that wealth.

I’m not coauthoring an undergraduate text simply to teach future police officers the rules of search, seizure, and trial evidence. I want them to explore the policies underlying those rules and to weigh, as thoughtful citizens, the value of those rules. I also want them to develop habits of critical thinking that they can apply in other aspects of their lives.

The Conversation

What do you think, Dave? Do these ideas appeal to you? Does it make sense for law schools to broaden their mission? Is this a way for law schools to serve society while also securing their financial base? I welcome discussion from Dave and anyone else.