This post is part of a series.
Next week Washington’s Wardman Park hotel will be invaded by 800 or so people looking for jobs as law professors, at the annual hiring conference put on by the Association of American Law Schools. “Experiential learning” is the buzz phrase of the moment in legal academia, as law schools deal with the latest wave of criticism that claims legal education doesn’t do enough to prepare graduates to actually practice law. (Such complaints from the profession are perennial: about every 15 years or so some commission or task force issues a call to make legal education more practical, which occasions a brief interlude of chin-scratching, and then is promptly forgotten).
Now the crisis of the American law school has almost nothing to do with the fact that law schools don’t produce “practice-ready” graduates, whatever that phrase is taken to mean. As I wrote elsewhere:
Producing “practice-ready” graduates (to the extent this could be done within the context of institutions that even loosely resemble current American law schools) does nothing about the problem that there aren’t nearly enough legal jobs that would allow those graduates to practice their newly-acquired skills, and even fewer legal jobs that pay enough to justify the current cost of legal education. And the only thing producing law graduates who are better prepared to practice law will do to the basic economics of the legal services industry (assuming this could somehow be done without raising the cost of legal education) is to make new lawyers slightly better off than they would otherwise be relative to experienced attorneys, while doing nothing for the economic circumstances of the profession as a whole.
It appears the great hope of at least some people who advocate a more practically useful legal academic curriculum is that turning out tens of thousands of new attorneys every year who are ready to “hit the ground running” will drive down the cost of legal services, thus creating new markets for those services, and thus more legal jobs. I don’t understand how this theory is supposed to work in practice. For one thing, it’s difficult to envision how moving law school toward a more experiential, practice-based, clinical model is going to make legal education less expensive, again at least within the confines of anything even vaguely resembling the contemporary American law school. Any reform that doesn’t make legal education less expensive while reducing the number of new attorneys is doing nothing about the real crisis, which is that law school costs far too much relative to the number of jobs available for attorneys.
After all, given the basic structure of American legal education, making that education more clinically intensive would be even more expensive than maintaining the present model, which remains centered on tenure-track law professors teaching relatively large classes. (The simplest way to drive down the cost of legal education would be to make the tenure-track faculty teach the same number of classes their predecessors were teaching in the 1970s. It’s true this might result in 5000 rather than 10,000 law review articles being published per year, but under the circumstances this might be a price worth paying).
Furthermore, there’s actually no evidence that legal employers — and especially the kinds of legal employers who pay enough to make the cost of law school an arguably rational investment — put any value at all on the relative practicality of graduates’ legal education. As Robert Condlin notes in a new article:
No one would dispute that the United States legal system has a labor market problem, but law schools cannot revive the labor market, or improve the employment prospects of their graduates, by providing a different type of instruction. Placing students in jobs is a function of a school’s academic reputation, not its curriculum, and the legal labor market will rebound only after the market as a whole has rebounded (and perhaps not then). The cause of the present troubles is a lack of jobs, not a lack of graduates (of any kind), and producing more “practice ready” graduates will have no effect on the supply of jobs. The proposal is a spectacular non sequitur to the present troubles.
Indeed it’s hardly an exaggeration to note that the extent to which law schools seem concerned about producing “practice-ready” graduates is almost perfectly inversely related to the employment prospects enjoyed by their graduates, at least if we measure this by who schools choose to hire onto their tenure-track faculties.
Despite the fact that almost every law school this side of New Haven is now slathering its web site and other promotional materials with claims that it provides an impeccably “practical” (as well as, of course, a sophisticated theoretical) legal education to its charges, the vast majority of schools continue to put no value — or indeed place what sometimes appears to be an actively negative value — on hiring faculty who have actually practiced law.
Consider the backgrounds of the people who took entry-level tenure track jobs at ABA-accredited law schools this year:
28.1% had no legal practice experience of any kind.
Nearly three out of five new law professors (58.2%) had between zero and three years of practice experience. Most people in this category who had practice experience had been junior associates with large law firms. (Being a junior associate in a large law firm is, from a perspective that cares about producing “practice-ready” law grads, about the worst legal job that a future legal academic could have. A new lawyer working in a DA’s office or as a public defender gets more practically useful litigation experience in his or her first six weeks on the job than the typical BigLaw associate gets in three years).
Only 13.5% of entry-level tenure-track legal academics had more than six years of legal practice experience, and only 7.3% had ten or more years of experience.
For all law schools, the mean amount of experience practicing law for new faculty hires was 3.6 years. This number declined dramatically among higher-ranked law schools: at top 25 schools, the median amount of practice time for new hires was one year, while the mean was 2.2 years.
If we define an experienced lawyer as someone with more than six years in the practice of law, then American law schools hired far more people this year with advanced degrees in the humanities and social sciences than experienced lawyers.
In sum, leaving aside whether it makes sense for law schools to dedicate more resources to attempting to produce “practice-ready” lawyers, it’s clear that the current tenure-track hiring practices of law schools provide no evidence that law schools are in fact doing so.