Rob Howse on the Future of American Legal Education

Rob has an excellent post today at Prawfsblawg extolling the potential of American legal education. It is nice to see someone dissenting from the conventional doom and gloom, and Rob makes a number of valuable points. But I feel compelled to take issue with (1) his description of non-American legal education, and (2) his assessment of the potential for American law schools to attract large numbers of foreign students. Here, in relevant part, is what he argues:

The potential of America’s law schools is only starting to be realized.

The global market for US legal education was traditionally regarded as composed of a relatively small group of foreign-educated lawyers seek advanced degrees. But this changing. Increasingly, a US JD degree is an attractive option for foreign students. And you have probably noticed more non-US JDs in your classes. In most countries law is the subject of a first degree after high school. The market could be expanded of US law schools were to offer a combination undergraduate degree in another discipline and a law degree-what about a 5 or 6 year program that leads to a BA in economics or political science or philosophy and a JD?

The fact is that American law schools have a competitive advantage. To be sure there is excellent legal education in some other countries. But my considerable global experience suggests to me that those countries are few. In most places, legal education is dominated by old-fashioned rote learning and by professors who spend much if not most of their time in private practice. Innovation is rare and slow. Class sizes are often huge.

If we are not distracted by US News rankings, we will observe that in all kinds of law schools all across the US there are world class intellectuals and leading specialists on the faculty. Of course national law schools abroad have a captive audience of students who can’t study in English and/or whose first and immediate priority is to qualify for the local bar or who can’t afford foreign study (though we can reach out to the last group through distance education and foreign campuses).   But overall the number of students with global ambitions, and the prevalence of English as a global language of law, are growing, from what I can tell.

It would have been nice if Rob had named names, because his rather dismissive description of legal education outside of the US strikes me as significantly overbroad. Does legal education in most non-American law schools involve little more than rote learning at the hands of non-academics? Rob is certainly not describing New Zealand or Australia, where I’ve held permanent positions. He isn’t describing Canada — especially not his own alma mater, the University of Toronto! — or most good UK law schools. Is he describing schools in countries with civil-law systems? I hope readers will weigh in, because my evidence is merely anecdotal. That said, I don’t think Rob’s description applies to the Netherlands or most Scandinavian countries. It may be somewhat more true of German legal education, though it certainly doesn’t describe all German law schools. I also doubt it is true of elite Asian law schools, such as National University of Singapore or the University of Hong Kong.

Frankly, I’m not even sure how well Rob is describing American legal education — at least in general.  His rosy picture of innovative teaching orchestrated by full-time academics dedicated to legal scholarship clearly applies to elite American law schools, but does it really describe the situation at lower-ranked law schools — even quite prestigious ones?  As Rob points out, there are excellent scholars in many, perhaps most, American law schools.  But that does not mean American legal education is excellent no matter where a student goes to law school.  Nor does it mean that legal education is generally better in the US than in other countries.

I am also skeptical of Rob’s belief that foreign law students represent a vast and largely untapped market for American law schools.  His point about the greater value of a JD on the international market is well taken; my law school, Melbourne, recently shifted to a JD-only model precisely in order to maximize the international marketability of our law graduates. I also agree that a graduate law degree can be a significant draw for students in countries where law is an undergraduate subject; approximately 15% of our JD students come from outside Australia.

That said, I question whether American law schools are particularly well-situated to attracting foreign students who don’t intend to practice in the US. Most obviously, American legal education is absurdly insular — far more so than legal education anywhere else in the world. Outside of the elite American law schools, students receive almost no education in international law. Comparative law is almost non-existent. All, or nearly all, of the professors are American. Exchange options are limited — and many foreign law schools are off the table, no matter how elite, because they don’t offer graduate-level classes. How much do most non-elite American law students know about how law functions in the rest of the world when they graduate? I’d venture it is vastly less than law students who graduate from law schools almost anywhere else.

And then, of course, there is the expense of American legal education — something that Rob doesn’t even mention. Why would a large number of foreign students want to spend $200,000 on an American JD when they can get law degrees in their home countries for next to nothing (even at the most prestigious law schools) or can attend elite non-American law schools for half the price? (Melbourne falls into the latter category.) Rob suggests that universities create five or six year joint BA/JD programs to attract foreign students. Barring a radical transformation in financial-aid practices, however, attending such a program would simply mean more debt for a foreign student — perhaps more than $300,000. How many non-wealthy foreign students would want, or could handle, that expense?

To be sure, for students able to afford Yale, Stanford, or NYU, the additional expense of a JD may well be worth it — even taking into account that starting legal salaries tend to be much lower outside of the US. But lower-ranked schools? I don’t see it. Given the insular nature and ridiculous expense of American legal education, the primary draw for foreign students will always be the prestige of the degree-granting institution.  So, far from providing salvation, I think that whatever pull the US has on foreign law students will likely do little more than exacerbate the vicious elite/non-elite division that currently characterizes American legal education.

Readers — especially non-American ones? Your thoughts?