No law student left behind.

Author:Tacha, Deanell Reece
Position:Symposium on Legal Education


For the better part of a generation, the public discourse on education has, to some extent, swirled around the general theme of "no child left behind," a moniker drawn from President George W. Bush-era federal legislation focused on elementary education standards. (1) In my admittedly naive and uninformed understanding, the debate has focused on themes of the cost of education, uniform standards, minimum knowledge requirements, classroom and testing prescriptions, teacher and student competencies, and the like. This discussion began with elementary students and schools and has now made its way to legal education! Although I have not seen others refer to the current debate in legal education as related to this lengthy national discussion, I think there are many ways in which the themes are the same, and we need to carefully avoid overgeneralization or exaggeration in the important evaluation that must occur in the legal profession about the role and character of legal education in the future.

I am actually energized by the long overdue focus on preparing the lawyers of the future for the new and evolving roles they can, and must, play in the next century. The legal profession is, in many ways, far behind the curve in scrutinizing itself and adjusting its models. Law schools largely follow the same model that has prevailed in modern legal education since the emergence of law schools as professional schools--either free-standing or attached to multi-disciplinary universities. (2) The Thomas Jefferson and Abraham Lincoln models of learning at the elbow of great lawyers and judges receded from the landscape in favor of institutional law school classes followed by course-specific bar examinations. The mentor model has re-emerged to some extent in the form of clinics, externships, internships, and clerkships, but I think most would concur that these experiences rarely replicate the idealized model of the student working very closely in a fertile environment for mentoring, professional formation, and learning. Similarly, until the economic crisis of the last decade smashed some of the models, the profession itself has taken little note of, and certainly not adapted to, the change that is now so obviously inevitable. So, I say whatever the debate is titled, it is important; it must be thoughtful; it must resist overgeneralization; it must recognize those aspects of legal education and the legal profession that have served society so well; and it must begin with the understanding that the models that emerge may be significantly different from the old models.

First, I begin with full self-disclosure. I was one of those people for whom legal education and practical experience in the legal profession have made all the difference. I chose to go to law school at a time when law was not on the aspirational horizon for most women completing an undergraduate education. I had never really known a lawyer, and, so far as I can remember, had never met a judge. I chose to go to law school for the same reasons that I suspect most lawyers over time would recite. I wanted to "make a difference" and during the middle of the last century, had been aware of, and watched with respect, the amazing impact that good lawyers made in their service to society. I observed that lawyers had skills that allowed them to persuade, educate, communicate, and generally focus public discussion and controversies in a way that ultimately led to orderly resolution, I had a deep reservoir of what could best be described as patriotic awe for the legacy of freedom and self-government in this nation and knew intuitively that a flourishing private bar and an independent judiciary have a lot to do with preserving that legacy. I can honestly say that I do not think I was ever motivated by any promised financial incentives because, in all candor, a woman graduating into the profession at that time rarely emerged in a position of great monetary reward. Thus, the contemporary debt-to-value debate was not a part of my analysis. Thankfully, tuition was not so high that it appeared as a lifelong "albatross" about my neck. I took a volunteer opportunity (which I sought) the summer after my first year so I could live at home and get some experience. In my entire career, financial consideration has never been the motivation. I have been a public servant who had the privilege of running a legal aid clinic, taught in many great law schools, served as a federal judge for twenty-five years, and have now returned to legal education in part because of the critical debate now focusing on legal education. My point is that I have had the richest experiences that the legal profession has to offer without defining those "riches" in pure economic terms. Thus, in the current cacophony, when there are distinguished voices questioning whether legal education is worth it, I am tone deaf!

I understand that the costs are too high, the debt load (as in most of higher education) indefensible, and the models outdated. But is there value in legal education? How can there not be? For me personally, I was changed, fulfilled, happy, and continually challenged. Somewhere along the way, I hope I have impacted positively the profession, my communities, students, or others with whom I have worked. But it is not about me personally. My professional life is but a placeholder for those generations of lawyers--here and abroad--who have modeled the rule of law by framing disputes in an orderly manner, resolving those disputes according to the law, bringing to every endeavor the importance of equality under the law, and securing for all the blessings of ordered liberty. How can it not be worth it to nurture and promote a flourishing system of legal education that will spawn new generations of lawyers who will preserve and promote these ideals for our children and grandchildren? Society has never needed the skills of a great lawyer more than it needs them now. In the shrill shouting of a contentious political environment, it would be immensely constructive to hear the moderated, thoughtful voices of lawyers who hear and respect all arguments, debate in civil tones, and find ways to resolve differences that move us closer to reasoned solutions. No one knows better than a judge that there is never just one right answer or one perspective and usually not just one best resolution or remedy. All good lawyers know that.

I was right when I decided to go to law school. Lawyers can "make a difference." Lawyers do serve society. Lawyers preserve the legacy of freedom and justice for all. Thus, this is not about whether law school is worth it in terms of whether we should continue to educate lawyers. Of course, we should. Indeed, I say we must, or risk losing forever the precious legacy of this great republic. Therefore, the debate is not about whether to educate lawyers. It is about how to educate lawyers. It is about what it costs and whether we are educating effectively and appropriately for the world that new lawyers will inevitably confront. The debate must be engaged openly and in a way that brings together the academy with the profession in unprecedented ways. Most of the discussion thus far has been isolated either within the academy or in the narrow sectors of the profession that have interfaced traditionally with law schools.


    Having clearly exposed my bias that the value of a legal education cannot be measured in purely economic terms--a proposition that I doubt few would argue with--I would be naive and not a helpful addition to the discussion if I failed to recognize with candor the economic imperatives that are pressing in on legal education. In my view, they cannot be ignored; they must be addressed forthrightly with some courage. The remedies are not easy "fixes." First, the cost of legal education has skyrocketed over the last ten years. (3) Answering the "why" question is complicated and imprecise, in my view several factors are at work--each of which is worthy of far more discussion than the cursory treatment I give them here. Since I graduated from law school, there has been a curious dynamic at work that relates to whom law schools hire, salaries in both the legal profession and the academy, and the budgetary structure of university-based law schools. It is beyond my expertise to bring any analytical light to this dynamic, but its characteristics are now easy to observe. There was a day when the faculties of law schools were populated largely by lawyers and judges who had significant practice experience in their chosen legal fields. Law faculty salaries, then and now, were, to some extent, related to salaries in the larger legal profession. Very few law faculty members held advanced degrees other than their law degree. Somewhere in the last part of the last century, two things happened. First, salaries of many lawyers who excelled in their chosen fields, and would therefore be prime candidates for faculty positions, increased at startling rates. Thus, when a law school was interested in recruiting one of these outstanding practitioners, some attention had to be paid to competitive salaries in the practicing bar. (4) During roughly this same period, the multidisciplinary research universities gave ever-increasing value to research and scholarship in faculty tenure and salary determinations. Law schools affiliated with those distinguished research universities moved steadily to the scholarly model of faculty hiring and reward systems and, to varying degrees, away from the more practice-oriented side of teaching and research. In law, unlike most other disciplines, scholarly productivity is measured, in large...

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