Iowa Law Symposium In Review: No Motel 6's For These Deans

Matt at LSTB has run a review of the recent Iowa Law Review Symposium/masturbation for academic eunuchs concerning the future of legal education, which I had mentioned earlier. He reviews the Chronicle of Higher Education's commentary and the fallacies and the moral dubiousness certain administrators keep spouting amidst some sensible concessions and realizations. He also asked my opinion, which is a mistake almost no one makes, but here goes.

I don't want to rehash the same ground, because LSTB's run-down is fairly brief and gets the point across well, but - setting aside the moral issues - I wanted to focus on the theme of law school efficiency, tradition, and readiness for legal practice. Here are some relevant excerpts from the Chronicle's review:

One reason schools are sticking with a familiar playbook: "It's a cost-effective method of education," Mr. Chemerinsky said.
...
Richard A. Matasar, dean of New York Law School, summed up the attitude he sees at many campuses: "We're all old dogs trying to learn some new tricks, and all of us old dogs have got tenure and we're not going any place."
...
Legal education does cost too much, Mr. Matasar said, mainly because it is "grossly inefficient." Schools could cut costs by stratifying—offering, as a friend characterized it to him, a "Motel 6" education with few bells and whistles, in which practicing lawyers teach many of the courses, as well as a "Ritz-Carlton" version taught by full-time, tenure-track professors. Neighboring schools could share library, faculty, and other resources, he said, adding, "Does every law school need an expert in the law of Timbuktu?"
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Gail B. Agrawal, dean of law at the University of Iowa, cautioned that law schools should be careful, as they shift their emphasis toward practical skills like drafting motions and interviewing clients, that they don't shortchange broader goals, such as cultivating a commitment to social justice.

Reading through these responses conjured up two main streams of thought: (1) this is exactly the type of predictable "the sky's the limit"/"but we have so much to do" worthless-at-the-end-of-the-day dialogue I expected; (2) this is exhibit A as to why self-regulation is a bad idea for legal education.

From a student view, who in the hell would choose a non-elite "Ritz-Carlton" (a.k.a. "Undergrad II") law school model? I would think that student demand would be to actually learn how to draft legal documents, file motions, argue at hearings, and - you know - make money as a practicing attorney. Frankly, it's derisive, ego-centric, and presumptuous to call the tenured professor model the "Ritz-Carlton" and the efficient, functional model the "Motel 6." Is it really a "luxury" to learn the Rule in Shelley's Case?

In other words, given a choice at equal cost between a Ritz-Carlton and Motel 6, everyone would take the Ritz. Given a choice at equal cost between a functional, trade-type law school and an Undergrad II model, I would think 2/3+ would prefer the former, since I'm 95% certain that that school's graduates would succeed and be more employable than those who got a less-hands-on education.

But the casebook-Socratic method thrives. For one, it is, as Dean Chemerinsky asserts, cost-effective from the schools' point of view. From the students' point of view, it isn't effective at all (i.e., they're not even getting the product they paid for). And I take issue with the idea that teaching practical skills is inherently more expensive. Setting up a formal law clinic or an advocacy course, yes, that's expensive. But so is having an Israeli Law and Policy seminar with 5 students in it, and so is paying Professor Bookworm 250k to be an expert on arcane applications of federal procedure.

But if you're going to have a class called, say, Constitutional Law, why not look at actual Con Law cases and arguments made in the past 5 years? Why do they do an anguishing review of commerce clause cases from the 1930s? Do a brief intro and go straight to Lopez, Morrison, and Raich. Are the Lottery Case and the Shreveport Rate Case interesting? I suppose. Would anything of real value to practicing lawyers be lost? Nope. After all, when given a new topic to do legal research on, no one would ever start at square one. Why would you? We tell students in their first-year legal skills classes to go straight to Am. Jur. to figure out what's going on and yet, in the doctrinal classes, they start at time immemorial. Why, God, why?

But it's more than just professors being "old dogs." It's also that the ABA has built in a number of safeguards to ensure that this system will remain in place for a long time. They allude to this in the article, quoting Jay Connison, Valparaiso Dean and ABA Accreditation chairman, in saying that the ABA is looking into changing their standards. Of course that should have been done 20 years ago and probably won't be done now, but the deans are right when they say the ABA's standards limit their creativity. For example, read Standards section 4 and tell me how in the "Motel 6" model of law school is even possible. And how is a school supposed to share a library with section 6 in the way?

What I suspect Matasar knows full well is that such a vision is impossible under the ABA guidelines. And while deans may complain about the ABA guidelines publicly, they are the ones who run the show. You can't blame "the man" when you are "the man!" And despite Connison's words, nothing is going to change. Why would it? Deans are self-interested capitalists who love the Ritz-Carlton model. Do you think anyone makes six figures under a Motel 6 model? No, and no one gets to fly to Iowa to pontificate, either.

Thus, all of this mess comes back to the ABA's monopoly over national accreditation, which the deans - especially the vocal ones who seem to wind up at all these symposia - have power to change. So, they've essentially bound their own hands so they can cry about having their hands tied.

But because their restrictions require so much in the line of library resources, tenured faculty, scholarship, and all sorts of things that seem, to me, ancillary to legal education that they've effectively shut off price competition. It's a complex oligopoly. Instead of having price (tuition) stability, they let anyone compete against them, provided that they have the virtually the exact same expenditures (guaranteed by ABA regulations). This isn't how real business works, of course. In the "real world," there'd be "Motel 6" law schools everywhere by now. And as much as we joke about it, that wouldn't necessarily be a bad thing.

Business has a natural tendency towards efficiency. We're seeing that in law firms, as they integrate LPO and cost-cutting. If "Motel 6" law schools could generate 90% bar passage rates at do teaching students part-time at $15k total cost, who in the hell would care? As long as there are still ethical and admission standards that the ABA holds the schools to, the American justice system wouldn't suffer at all. If anything, the range of options available may cause consumers (prospective students) to actually research the places more and figure out which schools are good, which are bad, which produce results, etc.

If you cut the resource requirements to what is actually reasonable, the "Motel 6" schools would have an incentive to keep costs low in a way that current TTT/TTTT schools simply can't. People bemoan the third-tier private schools that cost 30k+ a year, but the fact that every private law school has raised tuition in lock-step seems indicative that something else is driving their upward price movements. I don't think they're dumb enough to collude on prices, but nonetheless you wouldn't expect that in a world where the lower-tiered schools have at least some incentive to provide quality at a lower price. I think a lot of that comes back to the resource requirements (or perceived requirements), having a full-time tenured faculty, having a library, having state-of-the-art technology, having a scholarly output, etc.

Don't get me wrong, tuition has also gone up because of unnaturally-high demand for the product, but you can't tell me that it really costs 30k+ to teach someone enough law to pass the bar and be a practicing lawyer, and you can't tell me that all third- and fourth-tier private schools independently decided to set their tuition higher and higher every year because not onl are they trying to meet USNWR's (unreachable, for most) 2nd-tier status, they're also trying to outpace ambiguous ABA requirements.

And those regulations won't change. The deans have no intention of ever seeing a "Motel 6" law school genuinely compete for national students. No businessman - and that's what these guys are at heart - gives up a monopoly.

It's a remarkably simple problem with a remarkably simple solution, but it's one you'll never see at a symposium like this, where they'd rather show concern for "social justice" while implicitly supporting a system that is blatantly socially unjust. Where is the justice in stifling honest competition and innovation? Where is the justice in having an exclusive system that saddles students with $150k+ in non-dischargable debt? Where is the justice in forcing people to sit through instruction that has absolutely no relevance to their professional career, merely because some professor is interested in English common law conversion actions?

Fair criticisms aside, capitalism is excellent at rewarding efficiency. If you admit your system is inefficient, as Dean Matasar did, the answer is to remove any artificial constraints. Don't misread me: I don't think there should be law schools on every corner. I can't imagine the U.S. needing more than 100-150 law schools for its present population.

But I'm not about to grandfather in a bunch of inefficient dinosaurs merely because they have a second-tier name. If someone can make a law school that teaches ethics, gives hands-on experience, teaches practical skills, and gets a 90% bar passage rate for Costco-level pricing , I'm all for it. Anyone who is seriously concerned about tuition costs should be as well.

That, I think, is ultimately what the future of legal education hinges on: whether the ABA changes its ways or someone makes the ABA change its ways. Beyond that, I doubt it will be much more than morally duplicitous talk by men in nice suits who acknowledge the problems but want to find a solution that's more amenable to their interests.

Very long and winding and barely-coherent, I'm sure, but that's my basic take.