More course offerings, but less rigor?

Law and literature? Of course, that’s a thing. Indeed, in law school today, you can find all sorts of specialty courses.

Law and psychiatry? Yep. Poetic Justice: Dostoevsky, Nabokov and Literature in the Shadow of the Law? Absolutely!

William Carney, a retired University of Emory School of Law professor who spent nearly 40 years in legal education, wanted to know just how law school curriculum has evolved over the decades. 

“I had some free time,” he quipped.

The result was a recently published paper aptly called, “Curriculum Change in Legal Education,” which tracks changes from 1973 to 2018. Through his research, he noticed a shift from a number of bedrock law offerings to less traditional ones. 

Take business law, which is what he taught. That saw the biggest loss of courses over the years, his research found. Trade regulation got hammered. In 1973, the nation’s law schools offered 331 courses in that subject area. In 2018, it fell to just 46 courses.

Carney also calculated the percentage of faculty resources devoted to different courses. When it comes to trade regulation, in 1973, schools devoted 1.5% of their faculty resources on it. In 2018, it fell to 0.1%

Meanwhile, in 1973, there were no courses on law and literature. In 2018, there were 143 courses available. And schools devoted 0.4% of faculty resources on it. 

“The net effect of these changes is more courses, some dilution of traditionally heavily subscribed courses, and a less focused curriculum,” he wrote.

Why is this a big deal? Students are still taught core subjects, such as torts and Constitutional law, right? Why can’t they have a little spice?

Well, Carney argues that the changes he discovered may indeed be affecting student success. In 1973, the national average bar passage rate for first-time takers was 82%. By 2017 the passage rate had fallen to 72%.

And, as he notes in his paper, law school has gotten a lot more expensive since 1973. Tuition, adjusted for inflation, has more than doubled at private schools and quintupled at state supported schools. 

Are they getting what they pay for? He argues no.

Many of these new courses are not covered on the bar exam, so students could jeopardize their chances if they are too reliant on them, he said.

“My study shows dramatic increases in faculty size, course offerings, tuition, and evidence from bar passage rates of a less prepared graduate. All this is similar to what one would expect from cartel behavior.”

He’s not trying to slam law schools, he said. “I don’t try to make any judgments. I just relate the facts.”

Why is this happening? Carney argues there are multiple reasons. For one, as he notes above, faculty size has grown significantly. During the years his research spans, it jumped 70%. That led to a decreased faculty workload. That gave professors more time to develop courses such as Intersectionality, Law, and Popular Culture. 

A growing number of law professors have graduate degrees in other fields, so they tend to create courses that are related to them, he said. 

“The professoriate has become less professional and more academic and, in some cases, more ideological in its orientation,” he wrote. 

He found some new courses that left him confounded. He wrote that they “defy my attempts to rationalize their existence, either because of my ignorance of their content or suspicions about their usefulness in the practice of the profession. In some cases, they appear to represent approaches that are more political and polemic than legal.”

Such courses include animal law and feminist legal theory, he wrote. 

That did sit well with professors who teach feminist legal theory. Such critical theory courses are an important part of a well-rounded legal education, said Lisa Pruitt, a professor at the University of California, Davis School of Law. “These courses teach students how to think critically and they expose many to ways of looking at the world —and themselves — that are transformative.” 

Law school is evolving and for the better, she said. “Law professors tend to teach like they were taught, and very often, that's bad news for students,” Pruitt said. “Older professors were typically subjected — sometimes exclusively — to some form of the Socratic method when they were in law school. The Socratic method was historically used without scaffolding to introduce and reinforce key concepts. Increasingly, legal education is adjusting and becoming more attuned to effective pedagogy.

She also noted that her students get extensive feedback on their writing, which aids them when it comes to the bar. 

Cynthia Grant Bowman, a professor at Cornell Law School, also took issue with Carney’s assessment: 

“Courses like feminist legal theory and critical race theory address issues that are central to our society today and include much more doctrinal law than he might suspect, given his ignorance of their content; they teach critical skills that are central to being a good lawyer, rather than just a proficient practitioner, and to – what should be recognized as the goal of our legal system as a whole – the achievement of a just society.”

Carney said he did wish to get into a debate on the subject. His goal was only to present this evolution, he said. 

His research found that nearly 30 new courses have been added to the nation’s law schools in the span he studied. Ten had disappeared. “Some of the courses received very few teaching resources in 1973, such as Atomic Energy (12 teachers) and Roman Law (22 teachers),” he wrote of those that had been deleted.

Law schools have since grown unwieldy. They have too much faculty, compared to student body size, he argues.

“My investigation has turned up evidence of poor management of law school economics. The size of the law schools’ entering class in 2017 was almost the same as that of 1973. Given the existence of tenure, law schools are now faced with the dilemma of paying for the faculty hired during the high enrollment years. There was apparently little recognition of business and employment cycles, or the need to be prepared to downsize.”

The COVID-19 pandemic will only make things worse, he believes. Schools could face severe financial hardship because of the disruptions. Emory, from which he retired in 2012, had a sizeable number of students from China enroll. That won’t be happening for some time, he noted.

“I’m glad I’m out of it,” he said.