Indiana Law Review Legal Education: Professional Interests and Public Values Deborah L. Rhode* "All that is necessary for a [law] student is access to a library, and directions in what order the books are to be read." 1 That was Thomas Jefferson's view, and during the American bar's formative years, it was widely shared. In the Eighteenth and Nineteenth Centuries, most legal education occurred through apprenticeships with practicing lawyers, which often provided more drudgery than instruction. Alternatively, students could enroll in one ofthe few for-profit law schools, where quality varied considerably. Toward the end of the Nineteenth Century, training for law, like other professions, grew more formal and academic. 2 By the close of the Twentieth Century, about 180 law schools had three-year programs that met the American Bar Association's accreditation standards, and together graduated about 50,000 students each year. 3 To many observers, the migration of legal education into these standardized academic programs seems a mixed blessing. Certainly, the overall quality of instruction has greatly increased. But so has the expense. And, despite some recent improvements, the disjuncture between legal education and legal needs remains substantial. America offers the world's most expensive system of legal education, yet fails to address routine legal problems at a price most low and many middle income Americans can afford. Today's law students can graduate well-versed in postmodern literary theory, but ill-equipped to draft a document. They may have learned to "think like a lawyer," but not how to make a living in the process. These concerns are by no means a recent phenomenon, and some are probably inherent in the enterprise. Legal education has multiple constituencies with competing agendas and expectations. Law schools are expected to produce both "Pericles and plumbers"—lawyer statesmen and legal scriveners.4 Faculty, students, clients, consumers, and central university administrators all have priorities that push schools in different directions. But it is by no means clear that legal education has developed the most effective structure for * Professor, Stanford Law School, Director of the Keck Center on Legal Ethics and the Legal Profession. B.A., J.D., Yale University. A similar version ofthis essay appears in Deborah L. Rhode, In the Interests of Justice (forthcoming 2000) (manuscript at 1 84-206, on file with author). For related discussions of these issues, see Deborah L. Rhode, Missing Questions: Feminist Perspectives on Legal Education, 45 STAN. L. Rev. 1 547 (1993) and Deborah L. Rhode, The Professional Responsibilities ofProfessional Schools, 49 J. LEGAL EDUC. 24 (1999). 1 . Thomas Jefferson, Writings 966 (Merrill D. Peterson ed., 1984). 2. See Robert Booking Stevens, Law School: Legal Education in America from the 1850s to the 1980s, at 73-130 (G. Edward White ed., 1983). 3. See SEC. OF LEGAL EDUC. AND ADMISSIONS TOTHEB., A.B. A., OFFICIAL AMERICAN BAR Association Guide to Approved Law Schools 449-50 (Rick L. Morgan & Kurt Snyder eds., 2000 ed.). 4. See William Twining, Pericles and The Plumber, 83 LAW Q. Rev. 396, 397 ( 1 967). 24 INDIANA LAW REVIEW [Vol. 34:23 accommodating these varied concerns. As in other contexts involving professional regulation, the public has little influence over institutions that profoundly affect its interests. Key decisions are controlled by legal academics, who have the greatest expertise, but also the greatest self-interest in educational policy. Any serious commitment to improvements in the practice of law and the regulation of lawyers must start in law schools. The foundations of our legal culture are laid in educational institutions. Significant reforms will be impossible unless we change how future lawyers think about their professional roles and responsibilities. In short, both the profession and the public need to provide more searching scrutiny of law schools. Although there is widespread agreement about educational objectives, there is considerable room for improvement in the effort to realize them. At the abstract level, the educational mission is straightforward. Law schools should equip their graduates with legal knowledge, legal skills, and above all, legal judgment. Students should acquire the habits ofmind and ethical values that will serve the public in the pursuit ofjustice. To realize those objectives, law schools should reflect the diversity in backgrounds and perspectives of the broader culture. Their curricula should address the diversity in American legal needs. By these standards, legal education falls short. For too many students, it is not an effective or efficient way of providing essential skills. In too many institutions, diversity remains an aspiration, not an achievement. For too many faculty, professional responsibility remains someone else's responsibility. At the turn of the last century, Thorstein Veblen declared that a law school "belongs in the modern university no more than a school offencing or dancing." 5 In an effort to establish its place and pedigree, legal education lost touch with part of its mission. Legal academics have long sought to cast law as a "science," through the case method of instruction and rigorous doctrinal analysis. That legacy has proven inadequate. Meeting the needs of the profession and the public will require fundamental changes in law school structures, curricula, and priorities. I. The Structure of Legal Education The structure of legal education reflects a complex mix of public policy, professional oversight, market pressure, and academic self-interest. The United States Department of Education recognizes the American Bar Association's Council of the Section of Legal Education and Admission to the Bar as the accrediting authority for law schools. Under that authority, the Council has developed detailed standards governing matters such as classroom hours, student- faculty ratios, and library resources. About four-fifths of the states admit only lawyers who have graduated from an ABA-accredited law school and have passed a bar exam. Other states have developed their own accreditation systems, and some, like California, admit graduates of unaccredited schools who pass the Thorstein Veblen, The Higher Learning in America 211 (1918). 2000] LEGAL EDUCATION 25 bar exam. The rationale for a system of accreditation parallels the rationale for other forms ofprofessional regulation: a totally free market for legal education would not provide sufficient quality control to protect the public interest. Students, the most direct consumers of legal education, have limited information for comparing law schools and limited capacity to assess the information available. Seldom do they have a basis forjudging how characteristics like faculty teaching loads, library services, or reliance on adjunct professors will affect the educational experience. Many students rely heavily on aggregate rankings, particularly the U.S. News and World Report survey.6 However, the factors that most influence a school's position in such rankings are highly incomplete and often unreliable. For example, about two-thirds of a school's U.S. News score is based on the selectivity of its admissions, measured by LSAT scores, and on its general reputation among surveyed academics, lawyers, and judges. 7 As the discussion below suggests, test scores are an inadequate measure ofappl icant qual ifications, and reputational rankings are a similarly inadequate proxy for educational quality. Few of those surveyed possess enough systematic knowledge about a sufficient number of institutions to make accurate comparativejudgments. Many participants rely on the word-of-mouth reputation of the university, which explains why Princeton law and professional schools do so well even when they do not exist. Moreover, the ranking system excludes many factors that materially affect a student's educational experience, such as access to clinical courses, pro bono opportunities, and a diverse faculty and student body. 8 That is not to suggest, as some law school deans have claimed, that al I ratings are inherently flawed and the enterprise is comparable to ranking religions. Some characteristics can be objectively assessed, and schools should be held accountable for their performance. Students also have a legitimate interest in subjective factors like reputation, however fuzzy the measures. Prestige is, after all, part of what they are purchasing. Ratings can supply a useful counterweight to complacency and a check on puffing. In their absence, applicants might well encounter an educational Lake Woebegon, where all institutions are above average. But the problems with rankings like the US. News & WorldReport are that they assign arbitrary weights to an incomplete set ofrelevant characteristics, rely on inadequate measures of those characteristics, and offer a single final score. That score then establishes a pecking order for the top fifty schools and determines which tiers the remainder occupy. These rankings have assumed an importance out of proportion to their reliability, not only with prospective students, but also with administrators, faculty, and alumni. Such ratings often distort law schools' priorities; the temptation is to underinvest in features that 6. See Law School Admission Council, Law School Applicant Study 7, 19(1 999). 7. See Stephen P. Klein & Laura Hamilton, The Validity ofthe U.S. News & World Report Rankings of ABA Law Schools (Feb. 18, 1998), http://www.aals.org/validity.html (report commissioned by the Association of American Law Schools). 8. See id; Paul D. Carrington, Tanking the Rankings, Am. Law., Apr. 2000, at 39-40. 26 INDIANA LAW REVIEW [Vol. 34:23 U.S. News & World Report editors find unimportant, like diversity or public service, and to divert scarce resources to promotional campaigns showcasing reputational measures. A second problem in the market for legal education is that the most direct consumers—students—have interests that are not necessarily consistent with the interests of the ultimate consumers, clients, and the public. Education is one of the rare contexts where buyers often want less for their money. Many students would like to earn a degree with the minimal effort required to pass a bar examination and land a job. In the absence of accreditation standards, law schools would have to compete for applicants who viewed "less as more." Similar attitudes among central university administrations would compound the problem. Many administrators already view law schools as "cash cows." Most legal instruction can occur in relatively inexpensive large classes, and tuition can be set at comparatively high levels that reflect students' future earning potential. Without accreditation requirements, many universities would face even greater temptations to make law schools get by with less and to use more of their revenues for subsidizing other programs. These concernsjustify some regulatory standards, but it by no means follows that the current structure makes sense. A threshold problem arises from conflicts of interest. As a practical matter, control of the accreditation process rests largely with the ABA Council on Legal Education. In theory, its members are responsible for protecting the public. In fact, they are also representatives of, and accountable to, a profession with its own interests to protect. Lawyers have an obvious stake in limiting competition, preserving status, and preventing what many bar leaders perceive as "overcrowding." From their perspective, "less is more" in legal education, but in a different sense than for applicants or administrators. Less rigorous educational standards mean more new lawyers, more hungry mouths to feed, and more competitive pressures. 9 Legal educators have an even greater stake in the educational structure. In a New York Times Magazine profile, one faculty member put the point bluntly: whatever its other faults, "law school works pretty well for us." 10 On average, legal academics earn the highest salaries of all university faculty." And the accreditation process protects key aspects oftheir quality of life, such as tenure, teaching loads, and research support. Whether those standards protect the public as well as the profession is another matter. To be sure, the government makes some effort to ensure that the accreditation process is not narrowly self-serving. During the mid-1990s, the Justice Department's Antitrust Division forced changes in some plainly 9. See Charles B. Colvin, "Yes, There Are Too Many Lawyers" Now What Do We Do About It?, 42 LA. B. J. 246, 247 (1994); Robert F. Potts, Too Many Lawyers, Too Few Jobs, Chron. Higher Educ, Feb. 2, 1996, at Bl. 10. David Margolick, The Trouble With American Law Schools, N.Y. TIMES Mag., May 22, 1983, at 21, 39. 1 1. See Alison Schneider, Law and Finance Professors Are Top Earners in Academe, Survey Finds, CHRON. HIGHER EDUC., May 28, 1999, at A 1 4. 2000] LEGAL EDUCATION 27 protectionist standards involving matters such as faculty salaries and competition from non-accredited schools. Under recently revised regulations, the Department of Education also has authority to ensure that accreditation standards are "valid and reliable indicators of the quality ofthe education or training provided," and are "relevant to the . . . needs of affected students." 12 A Department review of law school standards is in process, and it is not yet clear how demanding government scrutiny will be. Traditionally, the views of legal academics have been given great deference in the accreditation process, largely due to concerns about academic freedom and difficulties in measuring educational quality. The price of that deference has been a structure that inadequately serves the public interest. Accreditation requirements substitute detailed regulation of educational input—such as facilities, resources, and faculty-student contact—for more direct measurement of educational output. Yet no evidence suggests that greater variation in these characteristics would significantly affect performance in practice. The limited data available reflect no correlation between the quality of a law school by conventional measures and the frequency of malpractice among its graduates. 13 Considerable research also suggests that the current educational structure leaves many students both underprepared and overprepared to meet societal needs. They typically are overqualified to offer routine assistance at affordable costs. And they frequently are underqualified in practical skills and inadequately exposed to interdisciplinary approaches that could inform legal practice in areas such as finance, management, counseling, and information technology. On the infrequent occasions when attorneys are asked to evaluate their legal education, most report considerable dissatisfaction with skills preparation. For example, between two-thirds to four-fifths of surveyed graduates believe that negotiation, fact gathering, and document preparation could be taught effectively, but only about a quarter feel that those subjects receive sufficient attention. 14 Similar inadequacies are apparent for problem solving, oral communication, counseling, and litigation. This mismatch between what law schools supply and what law practice requires calls for a different approach. The diversity in America's legal needs demands a corresponding diversity in legal education. Accreditation frameworks should recognize in form what is true in fact. Legal practice is becoming increasingly specialized. It makes little sense to require the same training for the Wall Street securities specialist and the small town matrimonial lawyer. While some students may want a general ist degree, others could benefit from a more specialized advanced curriculum, or from shorter, more affordable programs that would prepare graduates for limited practice areas. A similar point was made 12. 34 C.F.R. § 602.23(b)(5) (1995). 1 3 . See Manuel R. Ramos, Legal Malpractice: No Lawyer or Client Is Safe, 47 FLA. L. REV. 1,37(1995). 14. See Joanne Marlin & Bryant G. Garth, Clinical Education as a Bridge Between Law School and Practice: Mitigating the Misery, 1 CLINICAL L. REV. 443, 448 (1994). 28 INDIANA LAW REVIEW [Vol. 34:23 some seventy-five years ago in a prominent Carnegie Foundation report by Alfred Reed, Training for the Public Profession of Law} 5 Since then, the variation across substantive fields has grown more pronounced. For some routine services, most law schools' current three-year program is neither necessary nor sufficient. 16 Almost no institutions require students to be proficient in areas where unmet legal needs are the greatest, such as bankruptcy, immigration, uncontested divorces, and landlord-tenant matters. Other nations permit non-lawyers with legal training to provide these services without demonstrable adverse effects. 17 American law schools could offer such training and help design licensing structures that would increase access to affordable assistance from paralegal specialists. The profession, as well as the public, would benefit from an educational system that serves more diverse audiences in more diverse ways. As costs escalate, applicant pools decline, and placement markets tighten, law schools have much to gain from broadening their mission and potential student body. Abandoning a one-size-fits-all accreditation framework would open a range of possibilities. Some schools could offer less expensive two or three-year programs. A few states have accredited such programs, which cut tuition by strategies such as increased reliance on adjuncts and on-line library resources. Other institutions could supplement their standard curriculum with courses for paralegals, undergraduates, and professionals in law-related occupations. Many schools could develop advanced interdisciplinary opportunities for law students and practitioners, or shortened degree programs for individuals who would be licensed to practice in limited fields. More Internet-based distance learning could help decrease costs and increase access to specialized instruction that cannot be efficiently provided at all institutions. Each ofthese initiatives would, of course, present complicated cost-quality tradeoffs. Not all of them might ultimately prove desirable, but we have no way ofassessing the potential benefits without more innovation than the current structure permits. Greater diversity in legal education would also permit greater diversity in the legal profession and in the career paths of its members. The expense of current programs excludes many individuals from disadvantaged backgrounds. Others who obtain legal degrees acquire such substantial debt burdens that they cannot afford to pursue the public-interest or public-sector career choices that led them to law in the first instance. A growing number of graduates are unable to find jobs that pay enough to meet their loan obligations. Law school graduates have the highest default rate on student loans of all professionals, and almost a fifth declare bankruptcy. 18 Although some schools have developed loan forgiveness 1 5. Alfred Zantzinger Reed, Training for the Public Profession of Law 281-87 (1921). 1 6. See W. Scott Van Alstyne, Jr. et al., The Goals and Missions of Law Schools 43, 63, 83-85 (1990); see also Deborah L. Rhode, Too Much Law, Too Little Justice: Too Much Rhetoric, Too Little Reform, 1 1 GEO. J. LEGAL ETHICS 989, 1014-18 (1998). 17. See Rhode, supra note 16, at 1015. 1 8. See Ann Davis, Graduate Debt Burden Grows: OfAll Professionals, Law Grads Have 2000] LEGAL EDUCATION 29 programs for graduates who accept poorly paid public service positions, these programs address only a small part of the demand. More varied and affordable educational programs could increase the number and career options of low income applicants. Not only should there be more choices in legal education, but students should also have more reliable information about the choices available. The need for such information is not met by rankings like those of U.S. News & World Report and its competitors or by the limited standardized information that the ABA supplies. Prospective students need more comparative data, and schools need more incentives to compete, across a broader range ofcharacteristics than current rating systems address. So, for example, applicants might benefit from approaches adapted from undergraduate education that evaluate schools by reference to "best practices" in teaching. Such approaches can provide comparative data on students' experiences on matters such as faculty contact, effective feedback, skills instruction, and collaborative projects. 19 That is not to suggest that a totally unregulated market in legal education with complete deference to consumer choices would be desirable. The publ ic has an interest in maintaining threshold quality standards, and some students lack sufficient judgment, experience, or incentives to choose effective programs. However, given the inadequacies of the current educational structure, more variation, experimentation, and research arejustified. To make intelligent policy decisions, both the profession and the public need to know more about how different educational approaches affect performance in practice. Whether or not legal education should let a thousand flowers bloom, it should at least permit choices between delphiniums and dahlias. II. Diversity Not only has legal education provided too little diversity across institutions, it has also provided too little assurance of diversity within institutions. To be sure, the last quarter century has brought impressive progress. Until the 1 960s, American lawyers received their training in institutions that were almost entirely white and male. Sol Linowitz, a prominent Washington attorney, recalls that there were only two women in his law school class. Neither he nor his classmates questioned the skewed ratio, although they did feel somewhat uncomfortable when their two female colleagues were around. And he ruefully acknowledges, "[i]t never occurred to us to wonder whether they felt uncomfortable." 20 By contrast, forty-five percent of today's entering law students are female Compiled the Worst Loan Default Record, Nat'L L.J., May 22, 1995, at Al . 1 9. See Gerald F. Hess, Seven Principlesfor Good Practice in Legal Education, 49 J . Legal Educ. 367 (1999); Ben Gose, A New Survey of 'Good Practices' Could Be an Alternative to Rankings, CHRON. HIGHER EDUC, Oct. 22, 1999, at A65. 20. Sol M. Linowitz& Martin Mayer, The Betrayed Profession : Lawyering at the End of the Twentieth Century 6 ( 1 994). 30 INDIANA LAW REVIEW [Vol. 34:23 and about twenty percent are from racial and ethnic minorities. 21 But too many ofthese individuals still feel uncomfortable in the educational environment, and too few have advanced to positions where they can significantly affect it. Women and men of color are still overrepresented at the bottom of academic pecking orders and underrepresented in the upper ranks of tenured faculty and senior administrative positions. Only twenty percent of full professors and ten percent of law school deans are female, and only ten percent of those in either position are faculty of color. 22 These racial and gender disparities in promotion cannot be explained solely by disparities in objective qualifications, such as academic credentials or experience. 23 Women and minority students are also more likely to be silenced in the classroom and harassed outside it. 24 Issues concerning race, gender, and sexual orientation are often missing or marginal in core curricula. 25 Given these patterns, it is scarcely surprising that women and minorities report higher levels ofdissatisfaction and disengagement with the law school experience. 26 If our goal is to create an educational community, and ultimately a profession, of equal opportunity and mutual respect, we have a significant distance yet to travel. At the same time, efforts to narrow that distance are under siege. California's Proposition 209 and a federal court of appeals ruling in Hopwood v. Texas 21 have prohibited reliance on race at universities within their 21. See Richard A. White, Summary from the Directory of Law Teachers (Nov. 1999) (unpublished memoranda, on file with author). 22. See /