Rob Howse on the Future of American Legal Education

by Kevin Jon Heller

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?

http://opiniojuris.org/2013/02/02/rob-howse-on-the-future-of-american-legal-education/

3 Responses

  1. I have to say, I completely agree with what Kevin has written.
    I have studied in Switzerland, the Netherlands and am now researching in the US, so I guess I have seen a couple of different systems. I have mostly done international law and I indeed have the impression that American law students know next to nothing about international law (but also that most do not seem to be interested….). I have taken US law and international law classes here in the US (at a rather prestigious university). In international law, there are a lot less people and most are foreigners….
    Also, having had to do with some American JD students, if I ever were to hire people, I would very honestly think twice before hiring an American JD student (without a Master’s degree…). My impression is that they are not very good, or at least not as good as I expected them to be. Of course, this might be a wrong impression and I might just have met the wrong people, but that’s just my feeling.

  2. I think he has accurately described Peruvian legal education, at least when it comes to full time professors. There are very few universities that have permanent professors and most of the best professors are law firm practitioners first. Regarding rote learning, there are a lot of very good professors here, especially in the “core” courses like Contracts, Torts, etc., but there are some professors in certain universities and in certain “fringe” courses (particularly elective courses) that do engage in rote learning. Here it is very important to choose your professors and courses carefully. 

  3. American law schools exercise a great fascination on many a law school graduate here in Italy. However, only few are able to afford an LLM degree there, let alone a JD.
    Some choose to enroll in an LLM program anyways and then take the NY bar exam, but to what purpose? Of course, they cannot even begin to think about competing with someone with a JD for corporate law firms jobs. On the other hand, the NY Court of Appeals rules prevent them from taking too many specialized courses. What do they do, then? They come back to Europe or other foreign legal markets where their qualifications are still something that matter. Corporate law firms here once sought to hire lawyers holding an LLM degree from an American law school, and the latter could then quickly repay their – still reasonable, compared to the cost of a JD – investment. However, competition has grown tighter as more graduates started going down this road, and an LLM has become the “conditio sine qua non”, rather than a substantial asset. 
    This of course cannot be applied to those who want to pursue different career paths. Low paid public sector jobs are hardly compatible with sky-high tuition fees and. In some fields, such costs are hardly justifiable when top-notch schools in the United Kingdom offer top level graduate degree programs for a quarter of the cost or less (Oxbridge, for example) and those offered by other great schools in Europe do not even come close to these figures. 
    It seems that at least in some fields – for example, PIL – attending a law school in the US is simply not worth the cost, and sadly so, since there are some great schools with top level faculties. 
    This said, I would gladly spend three years studying law in the US, but I really cannot afford it. Our tuition fees are around 2,000 Euros per year (and lower if your income is not in the highest bracket). I can say I have received an overall good education. In some cases, a first class education, as I have also been lucky enough to learn PIL from a current ICJ judge and former ILC member. After five years of legal education here, however, I have decided to take the leap and enroll in an LLM program before I apply for a PhD, and I am going to do so in a top school in the UK. I have also applied to a few schools in the US, but I would never be able to go there without a scholarship. One of the reasons why I have made this decision is because I would prefer to pursue a PhD somewhere else than my own country, where research funding has been ruthlessly cut, and an LLM degree surely helps.
    Re: PhDs, I also think it is interesting that American law schools do not generally offer PhD degree programs. True, Yale does, but the program is only open to American JDs, while foreign-educated lawyers can only consider an SJD – which, again, generally requires prior completion of an LLM degree there – as a viable option. 
    In conclusion, my best guess is that the insularity of American legal education is by no means the main hindrance to attracting foreign students. The overall cost, on the other hand, is. These are times in which making an investment of that kind is a really risky bet – even more so for people hailing form cultures where there is no such thing as student debt and most graduates are sincerely shocked when they hear how much their American counterparts still have to pay for their college level studies. (Funded) PhDs could be another story, but surely there is no question that few students are now willing (or able) to pay those sums, especially now that the immediate benefits are starting to fade even for those who did. 

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