THE BLOG

President Obama's Right -- The Importance of Reducing the Cost of Legal Education

08/30/2013 05:34 pm ET | Updated Oct 30, 2013

Barack Obama is a candid. practically-minded thinker -- even when it cuts against his own tribe -- in this case the interests of his former law professor colleagues. His recent comment suggesting that law schools become less costly by shortening their course of study to two, rather than three, years makes sense. My own colleague, Paul Caron, has compiled the responses of deans and other leaders of the profession; no surprise, more than a few of the responding voices were raised in immediate opposition. The justification: promising curricular reform to incorporate serious training in the practice to complement professorial theory. That promise is sound, but s has been made for decades suggesting that the real interest of opposing schools is keeping the third year of tuition.

Over the last year or more, law school applications nationally have been trending downward. While triggering anguished cries of woe from many of my colleagues, my own view is that it is high time we cleaned up our act.

Law school education is too expensive and out of reach of too many. The expense of law school breeds over-indebted graduates and over-charged, and in the case of the poor, under-served clients. The profession should have largely separated itself from hourly billing long ago - it puts counselor and client at odds, adds unproductive expense, and stunts the profession's service obligation.

Every educational curriculum should be consistently evaluated for its effectiveness. Even top schools like Yale schools like USC or Pepperdine where I teach with bar passage rates typically among the highest in the land and ranking in the upper tiers of national rankings must strive to exceed every aspect of relevant accreditation standards. It is for this reason that I am urging my fellow teachers to respond positively to the President with curricular innovation, including 2 year JD programs.

The present decline in absolute numbers of applicants does not signal lack of demand, and arguably, the opposite. It is more delay than disinterest. Potential law students are savvy consumers. The present economic "recovery," if one can call it that, is at best uneven. It fails to reflect how the nature of work for many has changed and will never return in a form needing the same levels of employment. As a consequence, the rational holder of a BA or BS degree needs to be sensitive to immediate opportunity requiring cutting-edge skills - even if the graduate's long-term objective is joining the legal profession. Today's graduate of a college or university with a bachelor or even first graduate degree cannot afford to pass up opportunities of promise in the here and now. These opportunities require new skills to participate in the opportunities of economic expansion. My frequent interaction with law school applicants suggests not demoralization at job prospects or a mysterious disinterest in bettering themselves, but simply a real-time excitement to take their training in engineering or the sciences or the humanities into new digital and cutting-edge workplaces that the rising generation is uniquely capable of enhancing. It is foolish to bemoan their choice to commit their talents in these ways before the pursuit of professional study.

It is not only foolish, but perhaps dangerous, to insist that those who would apply to law school not have complete familiarity from experience with the way the present and future technology. Herewith the need for a 2 year program. The security for example of the fourth amendment and its protection against unreasonable search and seizure has not rested upon distinctions between trespass and non-trespass for some time. Yet, those who received a formalistic education in the law for a good many generations resisted the idea that privacy could be invaded without there being an invasion. Rights are diminished when they are unenforced or disregarded; they are also lost when technology exalts the interests of the state in a seemingly harmless algorithm that is anything but benign, but instead, is actively draining rights of all meaning. The lawyer of today will be advantaged by a thorough grasp of how data is mind, how drones are directed, and how technology can make time needed for deliberation seem like hesitation or cowardice. The lawyer of tomorrow will have to know that much and more. When entire nations rise up against tyrants based upon a call to action on Facebook, it borders on malpractice to sit smugly in one's office saying I don't participate in such social networks.

Everyone from the President of the United States on down knows the present economic cycle is not the recovery of the past. Indeed, its very unfamiliarity suggests that the makers of goods and the suppliers of services must know how to operate with the speed of blinking cursors, and not content themselves with inventory being sluggishly moved from remote brick-and-mortar locations. A law school that prepares its graduates to meet the needs of a changing and dynamic economic marketplace will be in need of smart, problem-solving and ethical lawyering. To respond to the President, a law program should attempt to answer three questions:

• How does the curriculum take full advantage of distance learning without sacrificing essential meaning and exchange of views that only a university setting can permit?
• How does the faculty figure in the discussion and the reformation of regulatory systems that today are easily circumvented by technology?
• Is the faculty sufficiently appreciative of the things that really matter; that are long-lasting and that must be passed on to each generation for the goodness of the human spirit to flourish?

Law Deans and faculty cannot afford to be a pessimist or join in the chorus of "oh woe is us." Applications to law school that deans may have expected to come in tenfold indefinitely turned out not to be entitlement. Get over it. Address it.

Lawmakers, like President Obama, are frequently commenting, and it is ridiculous to deny, that the cost of higher education - including the study of law - is too much. At Pepperdine Law, which was founded to give special place to religious belief, the concern for the extraordinary debt burden of our students and their families has prompted a good number of faculty (very nearly all voluntarily give back a percentage of their salary as support development efforts in other ways to provide greater student aid.

Two year programs should take full advantage of the calendar. What profitable business closes down every summer as most law schools do? With some creative scheduling a full year can be shaved off attendance expense. With a full year calendar, it is also easier to build in expanded access to a school's practicing alumni and practical exercises. Too many graduates of law school nationwide find themselves immersed only in theory. We know that theory animates the depth of scholarly thought and legal reform, and the best university law schools will always pride itself on its dedication to the highest quality of legal scholarship. But we must be equally dedicated to see that our graduates are client ready. They are not.

A two year program can also fix that both by freeing up the third year for structured pro bono training, for example, that would get legal assistance to migrants and other poor. And accreditation standards need not be forfeited. At Pepperdine, the 2 year programs need not mean less seat time, only better coordinated study, and often in tracks reflecting institutional strength. Pepperdine has been #1 in alternative dispute resolution for close to a decade so it routes law students in its two year accelerated course to take advantage of the summers before and during the normal semesters; doing so also facilitates enhanced and expanded clinical instruction.

Pepperdine got a head start on the Obama thinking in part by hiring a highly respected federal jurist (Judge Deanell Tacha, formerly of the 10th circuit) as dean. Today federal judges serve with modest pay and frequently confront overburdened dockets with tiny staffs or absent colleagues blocked by partisan wrangling over Presidential appointments in Congress; they are also first witnesses to the deficiencies of a legal education where practice or clinical instruction was nonexistent. Other schools have gained similar practical insight by hiring as dean practitioners from public and private practice (Catholic U. has gone this way) rather than a fellow academics, where in the Ivy's it's not uncommon to encounter a brilliant scholar who wouldn't have a clue about the most ordinary transaction.

Just as the sun often shines brightly on our magnificently beautiful Malibu campus overlooking the Pacific. Those who see only dark clouds ahead fail to grasp how, as a well-known Solicitor General of an earlier century once remarked, "there is little that [lawyers] do which the eye of man can see, but we do something irreplaceable: we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men's burdens and by our efforts we make possible the peaceful life of men in a peaceful state." No one who walks the streets of Tripoli or Cairo today can understate the importance of that contribution, and President Obama is right, getting our graduates out early to make that contribution is practically possible and a good thing.