Legal education, opportunity, and bottlenecks
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…
- 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.
- 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.
- 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?