Legal education, opportunity, and bottlenecks

Joseph Fishkin’s Bottlenecks offers a new theory of equal opportunity. (See symposium posts here and here.)

What does it mean for legal education?

One of the major contributions of the book is to offer a new social justice perspective from which to evaluate a wide variety of laws and policies, both public and private. The book invites us all to treat opportunity not just as a catch phrase, but really deeply explore its meaning and ramifications.

If we reform legal education not only to attract more students but also to promote social justice, how should we think about legal education’s role in the broader opportunity structure?

Bottlenecks includes a significant section on the role of college education (pages 205-212), which offers many parallels. But I found this snippet particularly helpful…

Instead of a pyramid, with a series of zero-sum contests to reach higher and narrower stages toward the top, [opportunity pluralism ensures that] the opportunity structure begins to look more like a city, with many different structures and paths among them, so that wherever a person may be situated, she has a range of choices regarding where to go next and what goals to pursue.

Much of the current structure of legal education reinforces a pyramid model of opportunity rather than a city model. Consider a few examples…

  1. Access to the legal profession is mediated by not one but two Big Tests: the LSAT and the bar exam. Bottlenecks identifies high-stakes contests as problematic because they encourage families with greater resources to “game” the opportunity structure by helping their children perform best on the test, while blocking or disadvantaging would-be lawyers who do not test well.
  2. Access to law school is pay-to-play, with most law students expected to fully cover the costs of their attendance. Financial aid is determined more so by one’s success on the first Big Test; financial need is a primary consideration only at the best-resourced law schools. Large sticker prices can scare away working- and middle-class students, even if the cost would ultimately be affordable.
  3. Law school typically has to be completed full-time during the day. This is ideal if you are starting your legal education right out of college. But if you already have family responsibilities… to provide for or to care for children… it is problematic. Part-time structures may also be educationally better for students who are beginning from an educational or language deficit.

What would it take to change this opportunity structure?

My own institution, the Robert H. McKinney School of Law, does quite well on some of these dimensions. Our tuition has long been capped by the Indiana State Legislature. Within this constraint, we achieve outstanding educational outcomes on a tight budget. (Ironically, we are penalized in the US News rankings for spending so little per student!) We have a vibrant part-time and evening program that serves large numbers of “nontraditional” students.

But there are many other ways to help ease people through the bottlenecks of legal education…

  • Award financial aid based on financial need rather than dubious measures of merit.
  • Publicize more broadly the gap between the “sticker” price and the typical price of a legal education.
  • Change the visa rules and loan rules to be more friendly to part-time status.
  • Offer a “terminal masters” so people can leave law school early… and return to finish the JD years later.
  • Keep and expand evening programs… even though faculty understandably don’t prefer to teach at these times.
  • Loosen the rules mandating “equal” offerings for evening programs, which may backfire by discouraging such programs.
  • Expand distance education to enable time-shifting and enable more students to live at home.
  • Develop a community-college style “feeder” system for law schools.
  • Offer and publicize day care programs and subsidies for child care for law students who are parents.
  • Give prospective students an opportunity to dip their toe into legal education for free.

Our current approach to enhancing opportunity in legal education focuses primarily on helping existing students overcome unequal academic preparation. But we could be doing so much more. This becomes clear when you start to apply the Fishkin framework… 1) Where are the bottlenecks? 2) Which are most important? 3) How can we help people through and around them?

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2 Responses

  1. Lea Shaver says:

    Of course, there is another dimension too that legal education is not only about the opportunities for would-be lawyers, but also about serving the would-be clients in ways that enhance social opportunity. That’s another point at which we have to think about the opportunity structure of legal education? Are we doing a good job of enabling our graduates to serve the people most in need?

  2. Joey Fishkin says:

    This is a great area to apply the idea of opportunity pluralism & bottlenecks from my book. Since you’ve especially invited comments, here are two quick thoughts:

    1. I have a sense, although this is not based on any inside knowledge of my or any other school’s practices, that merit aid in law schools (as compared to merit aid at undergraduate institutions) has moved even further along in pressing us toward a new regime in which it’s not really the yes-or-no admissions decision that makes the most difference for a large number of applicants — it’s the price tag (how much aid). Institutions have huge incentives to spend their aid budgets on competing for higher-credentialed students. Ultimately this reinforces the class bottleneck, for reasons I discuss in the last chapter of the book (in the context of college, not law school).

    2. I also wonder about a related question: should we think of the J.D. degree, and bar passage, itself as a bottleneck? Increasingly, I think so. I am thinking, here, of definitions of what constitutes the “practice of law,” such that a person without a law degree who does that thing is violating prohibitions against the unauthorized practice of law. There are a lot of intriguing proposals out there for expanding the range of law-related services that one is allowed to provide without a J.D. or bar passage I’m increasingly convinced that some reforms of this kind could usefully provide a way around the J.D. / bar passage bottleneck, allowing people to create enterprises that provide (certain kinds of) law-related services without “practicing law.”