Questioning the practice-ready grad push

I have written previously about one of the current fads in legal education: the excessive push for so-called practice-ready graduates. I offer some additional thoughts on this notion, which, in good measure, is an outgrowth of two often-competing sources with a now-common goal: law-school administrators and law firms. Both are desperate to save money in this permanently changed legal market. As such, both seek for law schools to offer a new and improved product ("now, twice the stain-fighting power in each box, at no extra cost!").

Of course, training law students for practice is a laudable goal, but law school graduates who pass the bar have always been fully entitled to represent clients in virtually all contexts (save the patent bar). So, one interpretation is that this movement is simply the equivalent of soap companies discovering what their product had always done — remove ring around the collar — and advertise such as a new formulation. Or the "new-and-improved" marketing motto of practice ready suggests something more — that graduates are ready to go it alone in all aspects of lawyering upon receipt of their diplomas. This is impossible. And excessively focusing on administrative minutiae at the necessary and inevitable expense of broader understanding produces bureaucratic paper pushers who are unlikely to advance their clients' interests — and the law generally.

In today's legal market, law firms frequently claim that they no longer want to, or can, train newly minted attorneys in the ways of the practice world. This attitude is driven in part by more savvy clients who are unwilling to pay more for training than legal services, as well as partners seeking to increase profits in a world of diminishing and diffusing revenue.  As such, they want law schools to absorb these once readily accepted costs. The law firms' position is rational only if they can succeed in shifting this burden.  Fortunately for them, they have found willing partners in many law school administrators.

Law school administrators are increasingly ready to jump on this train because (1) it provides a convenient excuse to eschew full-time faculty for far less expensive adjuncts, (2) they desperately (and usually misguidedly) hope to appease these very potential donors into assisting their financially troubled institutions, and (3) they recognize that U.S. law schools produce far more lawyers than there are available jobs; thus, schools want to use the practice-ready mantra as a means to convince potential and current students that solo practice is a viable post-graduation option for many, when it's not.  

Many law schools were once composed of what we now call adjunct faculty, i.e., practioners who teach a course in their area of practice. The effort to increase  professionalism and intellectual rigor in legal education led to the American Bar Association and Association of American Law Schools accreditation processes that require the very full-time legal academics that transformed legal education into what exists across virtually all American law schools today.

As a full-time academic myself, I might be accused of viewpoint bias, but the underlying facts cannot be disputed. I know I'm a far better teacher as a professional academic than I was before I joined the academy, and I'm confident that this experience is generalizable. 

First, as an academic, I conduct research that greatly informs my teaching. (Of course, academics that don't research and write, notwithstanding obligations to the contrary, are unable to make such claims.) For the most part, non-full-time faculty simply cannot engage in scholarship in the meaningful fashion that serious academics do. Second, I teach and research in enough areas of the law that I'm far better able to contextualize materials for students than I was before I became a law professor. Third, as a professional educator, I constantly focus on the skill of teaching in a fashion I simply could not have as a practitioner with the competing obligations of my real job.

With all this said, there are many indisputably excellent adjunct law professors. Indeed, I've met several. Their supplemental role in legal education remains appropriate and assured. But given their professional and temporal constraints, the ABA and AALS were right to demand a core body academic to teach new lawyers. 

Professional academics, however, are the single largest expense for law schools. And the role of administrator has increasingly become that of beggar, borrower, and penny-pincher. It's far easier to trim a budget by cutting into the big costs than the small. Administrators at lower-level schools are often more concerned with the short-term goals of staying afloat and appearing innovative than long-term public interests. Indeed, as had occurred during the savings-and-loan crisis of the 1980s, riding out the storm by "faking it until you make it" is a rational approach if survival is the primary goal. (In fact, many schools shouldn't be in business, but that's for another article.)

Thus, some administrators view their role as shepherding a cadre of low-paid adjuncts into manufacturing a clone army of practice-ready graduates — all while these administrators enjoy six-figure salaries (generally around a quarter of a million dollars at the lower paying schools, in fact). In exchange, these bureaucrats might provide a lecture or two on the intricacies of effective graduate education to the lawyers legion voluntarily conscripted into academia. And, voila, law professors abound.

Perhaps, though, those proposing these changes have no intention of reordering the workload balance in teaching law students at all — relying instead on current faculty. Put aside for a moment that the necessary decrease in doctrinal education — the core learning that law students must master — will undoubtedly result in practice-ready graduates, well, less ready to practice; most law-school faculty have remarkably little practice experience. And what they do have is often largely as junior associates at firms. I worked as a junior associate at a major law firm during the time that such experience was considered valuable training. I found it wanting. I learned exponentially more in each of my other two practice jobs: clerking for a judge and litigating at the U.S. Department of Justice. And neither of these employers are less prone now than they were then to train their employees. The problem, of course, is that there aren't enough of these types of jobs to meet the demand created by the excessive number of U.S. law schools overproducing new lawyers every year.

If being trained in practice skills by someone with junior-lawyer firm experience is what law firms and law school administrators really want, perhaps law students could just intern at the firms without pay and skip this portion of law school altogether. Law students would save a fortune on tuition, and law firms would avoid the training expenses they currently bemoan. Sounds like a great plan but for the fact law schools would be cut out of the game for their vigorish.  And we won't let that happen, will we?  

The notion of embedding in law school the training and experience that has traditionally occurred after graduation is akin to suggesting that medical schools absorb the obligation to teach all that doctors learn in residencies (which are often longer than the schooling itself) during the four years of medical school.  Could you imagine going to a doctor right out of medical school without any residency training? I cannot. I value my health more than that.

Law school education is by no means perfect. And while achieving the ideal is akin to Zeno's paradox, we should always seek to improve. But if history has taught us anything, it's that quick fixes to complex issues rarely work. Common-law jurisprudence is premised upon incremental change. We should take a lesson from what we teach and practice. Overturning precedent should be done deliberately and sparingly, not with the impatience and consideration of a loan-shark-indebted gambler on the verge of complete illiquidity. While betting the house might seem logical when the bank is on the front stoop with a foreclosure notice, it's really not a viable long-term strategy.

Robert Steinbuch is a Professor of Law at the University of Arkansas at Little Rock Bowen School of Law and a Fulbright Scholar in Teaching.