Can’t we all get along? Critics disagree over Washington and Lee

One of the leading players in the effort to revamp the curriculum at Washington and Lee Law, James Moliterno, has replied to his fellow law school reform advocate Deborah Merritt of Ohio State after her conclusion that the W&L program is failing to change employment outcomes for JD’s.

His argument is reasonable enough: it’s too early to tell. He may have a point as only one class has gone through the entire three years with the new program in place. Merritt claims the numbers for the 2011 class, which experienced 2 years in the program, were bad and those for the 2012 class were worse. It is also the case that those two classes were larger than in the past because – in accord with the cyclical nature of law school economics – college grads poured into law school in the early period of the 2008 era downturn as jobs for BA’s and BS’s dried up.

Earlier celebratory claims about the program – by Bill Henderson, a higher education consultant and professor at Indiana – relied on increased application rates at W&L not employment outcomes.

Personally I think many aspects of the W&L program sound exciting. There may be great arguments about implementing these kinds of curriculum reform as part of the general modernization of higher education.

But one gets into much shadier territory to suggest any relationship between these kinds of changes and employment outcomes. That is a function largely of the changes in the macroeconomy. If law firms and corporations need lawyers they will take on board all sorts of JDs and train them as needed, which I witnessed first hand during the dot com boom. When they don’t need them anymore they will get rid of them, as some folks at Weil Gotshal discovered this week.

Suggestions that what academics do with law school curriculum can impact overall employment remind me of those who argue that global warming is man made. It seems reasonable until you realize the same people making that case were advocates of global cooling thirty years ago. (Of course, reducing pollution with green tech and other changes in human behavior makes all sorts of sense even if we don’t have to worry about icebergs disappearing.)

So there are various ways one can slice this particular salami but that is not the interesting question to me. More interesting is what it says about the effort of people like Merritt and Moliterno to reform law schools.

Just what exactly do they agree on?

On the one hand they all seem to agree that law schools should add more experiential/clinical programming. And they also all definitely agree that law school is too expensive. Yet they never seem to address the fact that clinical and experiential programming is labor intensive and therefore inherently expensive. There is, then, a contradiction at the heart of the reformers’ cause.

If you look at the staffing of law schools over the last few decades the single largest shift and likely contributor to increased costs has been the expansion of clinical and experiential programs as well as the expansion of adjunct teaching. Traditional academic tenure track faculty now are often a mere plurality in faculty meetings as they are joined by colleagues running various clinical programs. This is a problem across higher education as the AAUP has highlighted.

Many law schools including my own can have as many as a dozen full time practicing lawyers working at the law school. I count twelve clinics at Stanford alone – one entire clinic for every fifteen students in their entering class.

Now there is some merit to this turn of events, undoubtedly. And if there is one thing that is true, it is that it is responsive to student demand. There is nothing that gets prospective law students more excited than the possibility of doing something that closely resembles what they think actually resembles the practice of law.

But should that demand – from untrained and inexperienced twenty-somethings – be the criterion that shapes the structure of law schools?

To ask the question is to answer it.

So much of what has happened in higher education over the last twenty years or so, however, has been driven by this idea that universities need to be more “customer” centric when they mean the customers are either 18 year old freshmen or the corporations that will hire them four years or seven years later. And it is true that only a very unusual kind of college can be a true cloister and so there must be a certain kind of permeability between the outside world and the university. I support, for example, the potential of integrating MOOCs into the law school curriculum.

But the university is not just a training ground – it is, Yale’s Owen Fiss recently noted, a distinct kind of institution whose autonomy from society, and from the market and state, must be protected. What those new law students do not know is what law practice is really like. Once they graduate they will quickly find that the time and space that a university setting provides for independent thoughtful consideration of issues, concepts and theories will all too easily and quickly dissipate under the pressures of the “real world.”

They should be encouraged to take full advantage of the opportunity to push off confrontation with that world while in school. Over the long run the lessons learned during a period of contemplation will create real value for them and for their clients.

If that is something we can agree on then I think it is much easier to examine potential alternatives to the current law school curriculum.

Law School Cafe » Too Soon to Tell.