Law School Deans as Cheerleaders, and the Delicate Marketing Dance, Part 2: The Case of Access to Justice
I have just returned from a conference in S.F. on non-JD programs — master’s degrees, with different titles, but basically programs designed to bring in folks with no immediate goals of training to become licensed lawyers. Let’s leave aside the catnip character of such programs, as they can be a key supplemental revenue source in a world in which JD enrollment is unstable (up recently, but with the generational cliff + loan caps + AI raising existential worries about the future). I expect to have some thoughts about this particular topic, but not right now.
What a number of legal education leaders noted, along with yours truly, is the possibility that such programs contribute to democraticizing legal education and, even more ambitiously, to preparing this new cohort of students for opportunities to actually furnish legal services, albeit only in the still-small number of states that have opened up opportunities through changing, or in the case of Arizona, all but dissolving, unauthorized practice of law (UPL) rules that would otherwise disable this cadre of “non-lawyers” from providing advice or even representation.
Opening up opportunities for para-professionals is potentially a game changer, as it can help tackle the gruesome access to justice crisis, that is, the crisis of over 80% of individuals who cannot realistically access the civil justice system, and so are looking down the barrel of creditors, landlords, better resourced ex or soon-to-be-ex spouses, and others who take part in the litigation system with an enormous advantage. No one thinks that changing UPL rules is a panacea, as the asymmetrical system of justice in the U.S. is a wicked problem with many causes. Nonetheless, many of us believe that such changes would bring real progress. And it would seem that deliberate attention to the connection between these new master’s programs, which frankly are growing like kudzu, and legal services provision is an interesting contemporary development, maybe even a movement. Credit to those law schools that are really starting to figure all this out.
Now what is an enterprising dean to do? The answer is complicated. The bread and butter of our programs and our business model is the training of lawyers. They furnish the lion’s share of revenue, full stop. Moreover, our faculty is configured principally around their distinct skills and commitment to giving students aiming toward a career as lawyers the best preparation for that path. How we best do that is the perennial question. Is our added value of legal educators mainly teaching substantive law? Is it learning hard into experiential learning (which all the workforce implications therein entailed? Is it training students to “think like a lawyer?” All of the above? Most of the above? The debate rages on. But, critically, it is a debate built upon the fundamental assumption that it is the lawyers we are training.
Investing in a serious way in the education of non-lawyers means building something rather different. It means programming, curriculum and the rest, geared toward a fundamentally different audience. Students not aspiring to become lawyers may be equally interested in learning the law, but they want and need different things from the law school in their time here. To be sure, some schools belief that their expectations may not be entirely different. As conversation at this and other similar conferences reveal, some law schools are focused on bringing master’s students into regular law school classes, on the belief that aspiring lawyers and others ought to be exposed to what is essentially the same stuff. This model has economies-of-scale rationales, but the other rationales remain, at least to me, somewhat elusive. Let’s just say that the belief that educating future lawyers alongside non-lawyers is equally beneficial for both cohorts is, um, somewhat undertheorized. (Disclosure: I was instrumental as dean in creating a program at Northwestern that was built on a totally different model, with a program that provided bespoke courses, geared toward educating students who would work at the intersection of law, business, and technology). Leaving to one side logistics, there is a tension between a firm and comprehensive commitment to educating lawyers and experimenting with programs that are designed to educate folks without attorney aspirations in and about law.
Returning to the topic of access to justice, we can see another tension bubbling up, and this one rests on a somewhat futuristic thought experiment. Here it is, put in deliberatively provocative terms: If we in law schools develop programs which train students to become graduates who will provide some modicum of real legal services and thereby respond to the access to justice crisis, are we not creating new professionals who can be expected to compete against our JD graduates for jobs? If master’s programs accelerate in the direction of training students to be skilled legal service providers and, alongside all this, there is a crumbling of the UPL regime which is propped up, after all, by lawyers protecting their turf, then we are doing something in some degree of internal tension: training students to become lawyers in a marketplace that is being impacted by this cadre of non-lawyers who are disrupting that same marketplace.
And so I come to my advice to deans: Lean into that tension; that is to say, lean into the overall project. You may or may not want to create and sustain a master’s program, as this involves variegated considerations that will be unique to each law school. But if you do so, you might want to embrace the enduring project of how best to educate the new generation of lawyers, whose value and essential role in a society committed to the rule of law is essential. At the same time, you also might want to figure out how you can best develop and nurture initiatives that will help train a new generation of folks in law who could help assist individuals who want and need their help. This is a vision of lawyers and nonlawyer para-professionals working alongside one another to advance civil and administrative justice, finding their unique roles and contributions and looking for ways to collaborate, rather than compete. It is an ambitious vision, but a realistic one. After all, we have evidence from states and other countries which have experimented with changes to the hegemonic system of occupational licensing and legal services regulation and the evidence suggests that the sky doesn’t fall, and indeed there are imaginative solutions possible and plausible.
Law schools need to be part of these conversations; and deans of law schools can develop the skills to ideate, but also to communicate to their myriad stakeholders that their law innovation-minded law schools can simultaneously build programs that successfully educate future lawyers, while also building and supporting constructively programs that help close the access to justice gap. In my experience, lawyer alumni are receptive to decanal communications that amplify this vision. To be sure, these programs need not be full-fledged degrees, but maybe more by way of micro-credentialing or perhaps even executive education, or whatever is best suited to law schools’ discrete goals. What these initiatives nonetheless share in common is that they are not merely exposing eager to students to law stuff, but are actually training students who might use what they have learned to serve clients.
Marketed as such, these initiatives can meet a larger objective that is of broad social value, and that is communicating to the world that law schools have a mission that goes beyond training and sending new lawyers into the workforce. That mission is about democraticizing law and decentering law schools from the specific goal of lawyer training, and including as wider goals the task of educating diverse folks from various backgrounds who will learn law — substantive doctrine, legal methodology, legal skills, interdisciplinary knowledge — to fulfill wider social ambitions that benefit from such learning.1 I know many deans who have leaned hard into this ambition, in ways that are distinct and imaginative, and this is a quite admirable project for a world of legal education that needs such imagination.
This post is U.S. centric, but I should note that our program, now more than a dozen years old, and with over eight hundred graduates, has appealed to a large group of international students, many of which aspire to return to their countries to provide services in an ecosystem that is much less protectionist than is ours. The access to justice crisis is not unique to the U.S., sadly.
Law schools are fundamentally trade schools with a particularly robust networking element but with a particularly weak focus on actual real life skills. The problem is that while one can easily augment the other, it's never treated as such.
I treated my law school experience as a trade school pretty much entirely. I went to all of the office hours for LRW, I always had an internship or externship and racked up 3000 hours or so. I missed my own graduation because I was in trial. I turned down multiple job offers and learned how to get a job without submitting a resume and indeed I haven't since. But I also spent a very awkward 5 months where I couldn't get hired at a restaurant and ended up refurbishing servers out of my apartment to make rent. Some of my friends had the money to go on vacation after the bar, but others ghostwrote briefs and did oddball jobs like me to get by for no good reason. Perhaps it's because law school in reality teaches for the bar exam except the bar exam frequently asks almost no questions pertaining to real life practice. I ended up doing a lot of admin law. There were zero questions on the exam about admin law. It felt like being a urologist being tested on how well I knew dentistry. Oh, and this was a the Javits Center and since the room was huge, it was obvious that at least a hundred test takers couldn't finish not because their own fault but because the really poorly made software crashed. I later reverse-engineered it and a lot of it might as well be rudimentary ransomware. It seems like a gross oversight to prevent cheating which, in practice, is not considered cheating, but fulfilling one's ethical responsibility by researching on the matter before giving an answer. Law school teaches would-be lawyers to act as ChatGPT does when it writes briefs - to hallucinate and showcase skills in a grand fiction, instead of actually, I don't know, lawyering?
I also never even applied to law review, did very little extracurriculars, and yet was well known enough in the courthouse that the first time I, with my provisional license in hand 2 days after my 2L finals, went up to the podium, which was nerve wracking even for a Friday status conference, froze for a brief second and the judge addressed me by name, and told me to calm down and start over. I had prosecutors pat me on the back in the hallway (I was at the public defender's) and telling me the worst part is over and everyone has a moment like that their first time in front of a judge like that. The community was supportive, which was a relief. If I panicked and had to start something over on an exam or god forbid the bar, I'd fail. They're night and day.
And I realize that the profession, especially in some states *ahemNEVADAahem* where they have artificial barriers to entry to disadvantage lawyers perfectly competent to practice elsewhere from joining the bar in the state by forcing seasoned practitioners to retake the bar. I'm a Nevadan, but went out of state for school and when I moved home, the zero reciprocity thing basically told me "go somewhere else or don't be a lawyer". So instead I quit the profession and then made more money wagering on sports in a spring training than I did the past year working in a public interest firm. Lotteries are illegal in Nevada, but some aspects of the hoop they put up is simply put a lottery, and it's entirely performative and entirely pointless. How many real generalists are still out there? I don't get asked to draft a contract and I wouldn't do so if asked. I'd call up a friend from law school. Ultimately this is a service industry job that happens to pay a lot to some. Reading law reviews lately I noticed the gulf between the notes and the articles. It's probably unfair to compare anyone to the likes of Orin Kerr, but a lot of what the students are writing in law reviews are laughably naive and detached from the actual law and sometimes I can't tell if it's a parody or not, since none of them had the quality of the Common Law Origins of the Infield Fly Rule. I understand that there's a barrier to entry, but the one we kept on makes no sense and I think is detrimental to the profession generally.
I can, still, treat the field as an intellectual one. Constitutional law as debated remains interesting, there are obscure cases that I very much follow, and I even have an RSS feed set up for opinions of Don Willett, 5th Circuit. I didn't gain the appreciation through the year of con law I took but through seeing it in action and the benefits and harms that can be inflicted. It also doesn't matter since on day one at the public defender's office I was told that if I expected a political career this is my last chance to leave. I stayed. And the admonishment rings true even today. It's all incongruous, and that's what's frustrating. We don't learn black magic or anything mystical, even though clients think we did. We don't get taught how to handle moral quandries that nobody else has a framework to figure out. Being 27 and trying to figure out how to negotiate out of a potential death penalty for my client was... well, a bit much, even with the qualifications on paper all there. Law school teaches so little about IRL client control that it's shocking. People go to law school for different reasons. I went because I want to engage in an adversarial proceeding to protect the rights of my clients and I did just that, but I also no longer go to any therapy because it's completely unrelatable to any therapist I've ever met. Now that we're in an era where Article III functions traditionally enforced by Article II agencies are ignored en masse, is there even a law to teach 15 years down the line?
"Let’s leave aside the catnip character of such programs, as they can be a key supplemental revenue source in a world in which JD enrollment is unstable"
Can? Non-JD enrollment in law school was stable for decades, rarely cresting 8,000 students. And by sheer coincidence that number exploded right after the Law School Crisis, which was precipitated by lawsuits and news articles about starving law grads, cratered JD applications and enrollment. Now non-JD enrollment is around 25,000 and nearly accounts for 1 in 5 students in American law schools. It has never been about anything other than a naked cash grab to make up for diminished JD enrollment, cheered on by a feckless accreditor that does not require law schools divulge ANYTHING about non-JD debt, employment, or salaries. How very convenient. Notre Dame professor Derek Muller has written about this sad and greedy law school side hustle for years. My own law school went from openly chiding LLMs as money grabs by unscrupulous law students aimed at desperate JD grads to [checks notes] offering a spate of LLMs and M.Jurs when it finally became public knowledge that only 45% of their grads were finding full-time jobs as lawyers and their JD applicant pool appropriately evaporated.
Incidentally these non-JD degrees do not fall under the professional degree rubric so far as I am aware so they will now be subject to a $20,500/year federal lending cap. Good luck with that!
"The bread and butter of our programs and our business model is the training of lawyers."
Really? When did law schools starting training their students? Have you guys renounced Langdell and the Socratic method and replaced your wet-behind-the-ears faculty with senior lawyers who actually teach how to draft and negotiate and manage a business and appear in court instead of spouting federal appellate opinions at students like they're all going to by CoA clerks? C'mon. Law school is a pseudophilosophical Potemkin village masquerading as a liberal arts program masquerading as a professional school.
"Is it training students to “think like a lawyer?”"
I hate to bang on this point but a faculty that is 98% comprised of people who graduated from law school, clerked for a year or two (or got a PhD in a different discipline), and joined the academy [clears throat] DO NOT KNOW HOW TO THINK LIKE LAWYERS THEMSELVES BECAUSE THEY'VE NEVER BEEN LAWYERS IN ANY MEANINGFUL OR INDEPENDENT SENSE. This is what I mean by law school being a Potemkin village. Law schools can't teach students how to think like lawyers because it doesn't employ people who know how to think like lawyers.