Criticizing law schools is the new national pastime. The Wall Street Journal, The New York Times and National Public Radio have joined the game. So, too, have many bloggers, opinion writers and recently even plaintiff’s lawyers. Some criticism is thoughtful; some is emotional and uninformed.
The criticisms are wide-ranging. They include steadily increasing tuition, high debt of graduates, inadequate preparation for practice, schools’ obsession with rankings, outdated accreditation standards and more. While all of these criticisms have been raised before, two features are new. One is the level of vitriol, a consequence of the weak economy. The other is the theme that students are consumers of legal education who are not being well-treated as such. I will focus on the latter feature in this article.
The claimed deficiencies in the treatment of students as consumers do not result from a lack of concern for students’ welfare. Rather, they result from a structure for law schools that was chosen nearly a century ago, problems created by that structure, and institutional impediments to change. A full explanation is very complex, but even a sketch can help one understand the problems and possible solutions.
At the beginning of the 20th century, there were two main types of law schools. One type followed a low-cost, low entry-requirement model and emphasized training lawyers for individual practice. Many schools of this type were proprietary and served immigrant populations. The second type followed an elite education model. They usually were attached to universities, required some college education for admission and generally sought to prepare students for sophisticated business practice in larger law firms. Over time, leaders in the profession and in legal education channeled all accredited law schools into the latter model. The other model was largely eliminated. The successful format was not adopted because of considerations of how best to deliver value to students. Rather, it was adopted because of institutional considerations, including that of protecting the status of the legal profession.
As a framework for doing business, the prevailing format has significant weaknesses.
First, at its heart is a business model with an undiversified revenue stream. Although there are academic reasons to focus on a single program — the J.D. — from an economic perspective, it is risky not to diversify. Many law schools are struggling today as a result of the dwindling J.D. applicant pool.
Second, J.D. tuition inexorably increases. It is common to blame this on supposedly self-serving elements in the law school, but at the root of the phenomenon is an economic condition known as cost disease. A law school’s cost structure is based overwhelmingly on compensation, and these costs inevitably increase along with the general rise of labor costs in the economy. Every enterprise is affected by this tendency toward labor cost increase but law schools have limited ability to offset it through productivity gains. The core services of a law school must be provided by faculty members working directly with students. This type of service cannot easily be made more efficient without changing its quality and character. Yet, without offsetting increases in productivity, total costs inevitably rise and are passed through as higher tuition.
Third, legal education is based on third-party financing. Students borrow heavily to pay for their education and so the entity paying the bills — the lender — is different from the customer. One result is to reduce the price sensitivity of the customer, thus facilitating price increases. Another is to allow the lender enormous leverage and put it in a position to extract concessions by threatening to constrict or cut off payments.
Fourth, the J.D. program of education is highly commoditized. Since schools cannot easily compete on price, they attempt to compete through differentiation. One such approach is to compete on the basis of status. Unfortunately for most schools, this approach fails because of a well-known phenomenon known as the cumulative advantage effect: those that already have higher status tend to increase their advantage at a higher rate than those with lower status. Stated more simply: the rich get richer and the less rich fall farther behind.
Fifth, schools are shielded from failure. Most law schools are attached to universities, which are invested in the prestige associated with having a law school. Hence, the typical pattern in the economy of progress through weeding out unsuccessful models is not effective, and the business of law schools remains conservative and shielded from change.
These issues affect every law school, although in varying ways and degrees. Each school needs to develop its own solutions appropriate to the school’s particular mission, strengths and culture.
At Valparaiso, our faculty, staff and alumni leadership are at work to improve services and ensure sustainability. As part of this, we have begun to develop strategies to address the challenges described above. Our full set of solutions is complex, but we have identified two components that are fundamental. I believe every law school should address these same two components as part of any effective solution.
First, a school must shift its strategic focus from the narrow question: What is the ideal J.D. curriculum? to the broader, practical question: What are the valuable services and outcomes we are offering? A good deal of the current criticism of law schools results from schools not giving a clear and compelling reason for students to purchase their services. Law schools are business enterprises — academic ones to be sure — and success and sustainability require starting with an understanding of a school’s students and the value to be offered them. At Valparaiso, we understand that our students want a bundle of services that includes not only instruction but also broad support for obtaining and succeeding in desirable jobs. For this reason, what we offer students centers on the extensive opportunity to build a wide range of lawyering skills and the extensive opportunity for professional and career development and success.
Second, once a school has determined the value offered, it must determine the key activities to support the offer and then deliver them. At Valparaiso we are delivering, among other things, an extensive program of clinical and experiential education (with faculty, staff and facilities to support it) and a school-wide system of personalized professional and career development services (with faculty, staff and facilities to support it).
This is a somewhat business-oriented approach. Many will resist thinking of a law school as a business enterprise. A common fear is that business considerations detract from adherence to the academic mission. Yet it is dangerous not to think of law schools as business enterprises, albeit mission-driven ones. In the end, focusing on value and its delivery is the best way to integrate academic and business activities, properly serve students and ensure that a law school’s pursuit of mission is sustainable in the face of challenges.•
Jay Conison has been dean of Valparaiso University Law School since 1998. The opinions expressed are those of the author.