Two stories have kept popping up in the legal news the past year. One is the law student debt crisis. http://www.nytimes.com/2015/10/25/opinion/sunday/the-law-school-debt-crisis.html The other is our broken criminal justice system. http://www.theguardian.com/us-news/2015/jul/15/obama-criminal-justice-reform-naacp We need to connect the two discussions.
There are lots of people to blame for the law student debt crisis. One group of culprits is the federal regulators who approved loans to students of “fly-by-night law” schools. Another is the administrators and faculty of traditionally sound schools who became involved in a spending war that drove tuitions—and student debt—higher and higher. There is now a lot of discussion about whether there should be dramatic changes in how we prepare students to become lawyers. That’s a discussion we should have. What alarms me is that so many of the proposed solutions to the crisis assume a world with fewer lawyers http://abovethelaw.com/2015/05/we-would-be-better-off-if-30-law-schools-closed/ Fewer lawyers means more injustice.
Their argument is that the high tuitions have spurred a situation where we now have a large number of unemployed lawyers who are unable pay off their debt. Closing law schools with a history of heavy student debt load will reduce the number of unemployed lawyers and the number of lawyers who have unsustainable debt loads.
But the argument ignores that fact that reducing the number of lawyers would also doom efforts to fix the criminal justice system. http://wrongfulconvictionsblog.org/2013/02/20/why-i-think-the-us-justice-system-is-broken-and-why-its-not-getting-fixed/ It will make it even more broken. Giving criminal defendants access to the services of a competent lawyer is not a total solution to the system’s problems, but it is a necessary part of any serious attempt to solve them.
Nor is closing law schools a solution for the problems of the millions of Americans who cannot afford legal representation in civil matters. Here is a statement by NYU Law School’s Brennan Center detailing how important access to legal services is to families who face foreclosure on their home mortgages. https://www.brennancenter.org/analysis/testimony-task-force-expand-access-civil-legal-services-new-york There are myriad other types of legal problems where access to a competent lawyer is also essential to a just result. And it’s not just the poor and near poor who will be affected by a reduction in the number of lawyers. If supply and demand work as experts tell us they do, reducing the number of lawyers will mean the same number of clients chasing even fewer lawyers. Think what effect that will have on the already sky high fees charged the middle class.
What should we do? We should find ways to connect the lawyers who can’t find jobs with the clients who cannot find lawyers. There are many ways do this. Now the great recession seems to have run its course, state and local governments should hire more public defenders and legal services lawyers. The federal government should institute a program for lawyers based on the successful Teach For America model for teachers. Recent law graduates would be provided free of charge to local legal services and public defender agencies for a year or two where they would refine their skills at the same time they both provided needed services to clients and earned money that could help them address their debt load.
So too law schools and their universities should be required by the AALS to double down on their “loan forgiveness” programs for graduates who go into a public service practice. And foundations could sponsor “start up”programs that help young lawyers establish practices in areas where there is a lawyer shortage. Guaranteeing an income, office expenses, and malpractice costs for a few years would help many young lawyers find a fulfilling career serving Americans who cannot now find lawyers.
But critics are right to point out that it is time to rethink our model of legal education. While we should not force existing AALS-approved schools to close shop, we should encourage them to come to terms with a new era. Tuition was 1500 dollars a year when I went to NYU. Now the number is 57,000. The traditional three year model for legal education should transition into a model calling for two years supplemented by a more robust CLE commitment after graduation and improved opportunities for practicing lawyers to earn LLM degrees in their area of specialization. Third year was my favorite year in law school, but I can’t claim that it was a necessary prerequisite for a license to practice law. A two year J.D. by itself would go a long way in reducing the debt load of new law graduates.
These are my ideas about how to handle an admittedly difficult problem. If you have ideas of your own, I would like to hear them.