By Eric Miller
Recent critiques of legal education have, quite rightly and quite importantly, focused all of us on the costs of legal education. However, the central paradox facing proponents of an egalitarian and primarily skills-based legal education is that the most obviously skills-based components of a legal education are the most costly. Law schools have, over the past quarter century, embraced a massively increased emphasis on clinical offerings. Other components include—as described in an earlier post—making classrooms more like law firms. But each of those innovations requires a higher teacher-to-student ratio than the traditional, large classrooms, and so is more expensive. So the true scope of the cost-of-law-schools debate is not just how much scholarship we can afford (and how to value it) but how much skills.
Two solutions to the egalitarian skills-based dilemma are currently popular: (1) reduce the number of years required to graduate law school from three to two, cutting the cost of tuition by 1/3; or (2) reduce the cost of skills-based classes by turning from a clinical model to an externship model. The idea behind each is that students can be more quickly and cost-effectively directed into apprenticeships. However, there is relatively little discussion of what an apprenticeship costs and who is to bear the costs of an apprenticeship.
I tend to think that one of the most radical changes in the law market is in the nature and availability of apprenticeships. My hypothesis is that there has been both public and private disinvestment in apprenticeships, due to a variety of factors. On the public side, states have disinvested from the law, period. In particular, states are cutting the provision of the sorts of government jobs and public legal services on which entry-level lawyers tend to cut their teeth.
On the private side, one sort of apprenticeship—two years of document production for those interested in litigation—has been outsourced and mechanized. For many apprentices, the range of tasks were legally light but firm-politics heavy. The goal was to impress partners through willingness to engage in hard drudge work writing memos and doing document review. Those apprenticeships have disappeared. Furthermore, corporate law firms are disinclined to engage in the early stages of apprenticeships in an attempt to shift some of the cost from the firm to others. This is what they mean by “practice ready.”
The issue then becomes: who is to bear the cost, and how much does it cost?
One way to think about the cost of apprenticeship is to regard a one-year federal or state clerkship as an apprenticeship. One reason for regarding the clerkship as an apprenticeship-surrogate is the value that firms put on it: while the clerkship, like a high-ranked law degree, has some publicity value, it was also valued for providing valuable legal training and relationships with a judge. Such training cost the federal government (rounding down) about $30,000. Other public-sector apprenticeships could include working for legal aid, or in the public defenders office, or for government; or working for a public interest law firm. While I realize such back-of-the-envelope calculations are insufficient, so that the value of an apprenticeship may be more or less depending upon, e.g., location and firm, that’s to my point: it would help to have some sense of what an apprenticeship, or different types of apprenticeship, are worth. So far as I’m aware, no-one’s come up with a figure.
So one way of looking at the law-firm bubble is as a bidding war over the value of apprenticeships (and law degrees). That is, if an apprenticeship was worth $30,000 to the firm, they were willing to pay $80,000 before the bubble at a top firm, and then $120-140,000 during the bubble, in order to attract the most desirable apprentices. And top-tier private law firms paid these apprenticeship costs recognizing that the majority of apprentices would stay for 2-4 years and then leave after their apprenticeship, in part due to the limited availability of partnerships.
Most importantly, perhaps, we might productively think of apprenticeships (and the prestige that went along with the apprentices’ law degrees) as the subject of the bidding wars of the late 1990s and 2000s that led to the market bubble and the subsequent collapse. Once the bubble burst, however, private law firms had discovered that they could no longer pass the cost of apprenticeships onto the client, and that much of the work that apprentices did could be done by non-lawyers or mechanized. So, given that clients were no longer willing—and law firms didn’t want—to pay for apprenticeships themselves at the current rate, they faced two options: cut the money paid to apprentices, or require someone else to provide the apprenticeships. They’ve gone the latter route.
I think they’ve gone the latter route for rankings reasons: just as students judge law schools on both traditional prestige and USN&WR, so they judge law firms, particularly those at the top, on both traditional prestige and upon entry level salary. Cutting entry level salary below a certain amount would undermine the prestige of the top law firms. So Brian Tamanaha’s critique of the Yales and Harvards of this world applies, on the apprenticeship side, to the Cravaths and Covingtons of that one.
What we now see is mid- to large-size private law firms getting out of the apprenticeship market (and only staying in the law degree market at the top end). Now, under the rubric of “practice ready,” they seek to pass on the cost of apprenticeship. Lacking a public sector able to absorb apprenticeships, that means the law school and the law student have to take up the responsibility for, respectively, providing and paying for the sorts of apprenticeships when formerly law firms did both.
Here, it might be worth noting that on the state side, the move to permanent clerks has shrunk the pool of apprentice-level jobs. One reason why judges prefer permanent clerks, we might suppose, is the high start-up costs of training them. Which reveals another dirty secret about apprenticeships: it takes lots of time and effort to oversee folks learning to do a job. Put differently, an apprenticeship takes more than providing students or graduates with legal experiences: it requires training them to do a particular job. And that often takes more time and effort than if you did the job yourself.
The standard response is to cut a year of law school and substitute in externships instead. But if we think (as I suggested) that apprenticeships require training lawyers, rather than simply providing them with legal experiences, then externships are at best a limited substitute. First, not every experience is a useful experience: inculcating the wrong habits can do more damage than good. Second, training requires supervision and reflection, and so requires someone in the firm to do it (for free) or someone at the law school to do it. Finally, the best externships are tailored to some market in which the skills more-or-less directly lead to subsequent employment. Slapdash externships are not the way forward.
One example of the sort of high-quality externship I’m talking about is our Center for Health Law Studies clerkship program in Washington D.C., where students extern in a health-related federal agency on a nearly full time basis for an entire semester. They work with complex health care regulations while getting the opportunity to network with contacts in the federal government and the D.C. health law system. The externship is valuable precisely because it requires a combination of experiential and course work, addressing professional responsibility issues and advanced topics in administrative law. It not only provides experiences, it provides training. I’m not sure this is the sort of thing that the proponents of bargain basement externships have in mind.
So if the argument is that externships or two-year degrees makes things cheaper for lawyers who can then serve their communities, then one question is what sort of experience those lawyers are going to bring to their clients. As the experience of SLU’s ArchCity Defenders (and Washington University’s MICA Project) graduates shows: for many low-level clients, there just are no attorneys doing this sort of work. The goal is not to take over the job of “fill[ing] out and filing documents.” It’s to provide individualized, useful legal services (rather than mass case processing) for this underserved population. Creating a generation of writ-writers for the underserved does no-one—client or lawyer—any good.
That’s why a strong and innovative clinical program is so necessary to train students in the provision of indigent legal services. Again, law school clinics are filling the gaps left by state disinvestment in serving low-income or otherwise at risk communities. Here at SLU, Sue McGraugh has pioneered an interdisciplinary clinic specifically designed to teach students to advocate holistically. In 2010 the state closed the local psychiatric center, which used to manage individuals with serious mental illness whose symptoms brought them into contact with the law. Now our clinic, staffed by Sue and social worker Lauren Choate, trains our students to advocate for these clients and learn the sorts of holistic skills necessary to guide their clients through the maze of referrals facing low-income and at risk clients more generally. It’s pathbreaking stuff. While Sue (and the rest of our clinic) is particularly great, clinics across the country are stepping in and providing these services as state and private opportunities dwindle. But these services are not cheap.
Furthermore, if we move to the two year model, one consequence is that smart law schools will simply offer a modified externship experience. If I were looking to gouge students, I’d offer a two year law degree and then a two year practical skills course at a cut rate. I’d recoup the cost to the law school by having adjuncts teach it, which satisfies both the optics of practice ready and lowers the cost of teaching. Of course, this could be done really well. But it’s not clear to me, without some hard thinking about what schools should be offering, that this model is not open to the same abuses of the current model, or that it addresses any of the problems of shifting the costs of apprenticeships onto the student that I have identified.
One problem with the American debate over law schools is that it is parochial, focused on its own back yard. One lightly-tossed-off comparison is with medical residencies. But if the idea is to model legal apprenticeships on medical residencies, we should prominently recognize that the state funds these residencies: law firms don’t want to and neither does the state.
Perhaps it makes sense to compare the provision of apprenticeships here to other common-law systems. In England, where it is possible to get a two-year law degree (if the student has an undergraduate degree), the bar usually requires two-year solicitor training as prerequisite for admission to the bar (it’s one year for three-year law degree), and then law firm apprenticeship at reduced pay on top of that. The bar training programs are state funded or bar funded: students do not bear the full (or much of the) costs. It’s the availability of funding and the low cost of education that makes it all possible.
Withdrawing the state and private discounting costs for the training prerequisite to apprenticeship would have significant costs on the ability of students to undertake them. Requiring recent graduates to fund their apprenticeship has similar effects. In Scotland, where the advocate (trial lawyer) apprenticeship is not funded, most people cannot afford to go straight to the advocate’s bar, and so must work as a solicitor first (at apprenticeship rates for the first two years, to boot) in order to be able to afford its costs.
So it could be that the current crisis in the law market is worse than we imagine. The current story is that the law market has changed permanently and that the number of law jobs has shrunk. My hypothesis is that the apprenticeship market has shrunk more than the rest of the law market. It is not just that there is a general outsourcing of low-level jobs and a narrowing in the market; it is that the outsourcing and other changes mean that apprenticeships are disappearing, and it is the student who now has to pay for the apprenticeship, rather than the state, the firm or the client.
And this is not a move generated by evil academic law professors; it’s generated by the law firms who (having created the apprenticeship bubble) no longer want to bear the start-up costs of training associates. And it’s generated by massive state disinvestment in law in general and (in many states) in education too. That’s led to an increase in the cost of education while simultaneously decreasing the jobs that could be used to pay for it. Our students are between a rock and a hard place, and we’re being asked to radically rethink legal education by folks who played the bubble, lost, and don’t want to bear the costs.
Certainly, we as law professors need to think about how to reduce the costs of education. And there is a moral point to be made: by refusing to exit the rankings game created by USN&WR, we financially burden our students in perverse and perhaps self-destructive ways. But law firms are playing their own rankings games and hurting our students too. And the place they’re hurting our students the most is over the cost of apprenticeships.
This article was published at PrawfsBlawg.com on 3/1/13. Read it here.