In his article “Three Models of Legal Education and a Plea for Differentiation”, Jan Smits questions the traditional “one-size-fits-all” curriculum adhered to in many law schools around the world from China to Europe and places in between. In describing some of the key characteristics of this traditional framework, Smits quotes Patrick Atiyah and Robert Summers stating that “[t]he tone of textbooks is often dogmatic, with decisions presented as if they were strict decisions from basic principles.” Smits continues by addressing the criticism that this common type of legal education is  “too academic” and also tackles the overarching question of whether this type of doctrinal legal education is contributing to the growing problem of how the “lawyering skills of law graduates” have declined in a “great variety of countries”.

In an attempt to explain this alarming phenomenon, Smits notes that teaching the law is often confronted by the fact that it attempts to serve two masters: the interest of the academic community and that of legal practice. He notes that generally speaking, there is not enough thinking about how these two interests are balanced, especially in the traditional law school framework where the teaching methods tend to be more doctrinal. In answering the question of how legal education can adapt to better suit the needs of future lawyers, Smits lists two alternatives to the doctrinal framework (liberal law education and legal engineering method) and calls for the continuing differentiation of legal education methods. This commentary will summarize Smits’ arguments, while incorporating my personal take on his arguments, which is that law schools need not only to balance the interest of the academic community and that of the practitioners, but must also take into consideration the fact that a university, at its core, is a business.

Rethinking Legal Education in Light of Globalization

Perhaps the rising concern in the quality of law graduates and their “lack of practical know-how” can be explained – at least partially – by the fact that as legal issues increasingly become more global in their nature, lawyers are simply expected to know more than ever before (not just about the law of their jurisdiction, but laws of other jurisdictions and how conflict of laws are resolved). In other words, perhaps it is not the graduates’ average knowledge that is noticeably in decline, but rather the growing expectations that our society has for them that is partly to blame. Regardless of its potential causes, however, the problem remains that practitioners are increasingly unsatisfied with the graduates from a doctrinal legal education because they are not meeting the demands of practicing in the real world. So what can universities do to deal with this problem?

Smits’ point is that legal education should adjust accordingly, not in uniformity, but in a way that preserves the diversity amongst universities, each offering different types of legal education: Given that the demands of the society are diverse, legal education should reflect this reality as well with different universities utilizing different teaching methods and having different specialties. Smits praises Maastricht University’s European Law School (ELS) as an example of a law school offering a different education model vis-à-vis a more traditional method. I wholeheartedly agree that Maastricht University’s ELS does indeed offer a unique approach [in the interest of full disclosure, the University is my employer]. By teaching students laws of both civil and common jurisdictions and forcing them to examine their similarities and differences, the graduates of this program tend to have a broader knowledge of different jurisdictions and the ability to think with a European mindset, rather than that of one single jurisdiction. However, what this also means is that our graduates end up becoming jack of all trades and a master of none, which as Smits observes, creates issues with civil effect and the ability for ELS graduates to actually become practitioners in any jurisdiction. This is not necessarily a problem if all of our graduates end up working for supranational government entities, international NGOs or lobbying firms out in Brussels, but for those seeking to actually practice law, say in the Netherlands, the ELS is not necessarily the easiest way to achieving that goal (though Smits would likely argue that this is differentiation at work and an illustration of Maastricht University’ ELS choosing its niche field by prioritizing a European perspective and not focusing on any one jurisdiction).

American Legal Education: Having Your Cake and Eating It Too?

To be fair, if the brevity of legal education prior to becoming a practitioner is a criterion, students would be best advised to avoid pursuing a legal education in the US, where the process of becoming a lawyer is definitely more “time-consuming” (though perhaps a bit more thorough). Practitioners in the US usually have four years of liberal arts education during their bachelor years and three years of legal studies at an accredited law school. Gaining entry into one of these universities not only requires “motivation and an admission test”, as Smits states, but a plethora of other accomplishments (both subjective and objective ranging from high LSAT scores to leadership roles in extracurricular activities). These attributes are carefully vetted by admission offices, whose sole purpose is locating and recruiting the cream-of-the-crop candidates to their universities, a practice that the Dutch universities are apparently “restricted” from doing.

I humbly submit here that this American legal education method offers all three legal education models noted by Smits. A typical practitioner in the US obtains liberal education during their undergraduate stage (where they can learn about philosophy, sociology, economics, etc. so that they can subsequently put the law in a broader context) followed by a traditional legal study in a law school (where they learn about the law and how to think like a lawyer). With regards to what Smits refers to as the “legal engineering” method, where a more practical, professional education is emphasized, American law schools offer ample opportunities for their students to gain hands-on practical experiences through summer internships and law clinics, where students (this author included) work as student-attorneys for real clients under the supervision of the university or participating law firms.  All of these qualifications are required even before the students can gain eligibility to take the bar exam and although the bar exam may not test whether the exam-taker has sufficient knowledge of the law, as Smits notes, it does evidence – at the bare minimum – that the practitioner is at least competent enough to prepare for and work under gruelling pressure, much like they will be required to do in practice.

In the US, the law schools do not have to choose between different education models, because over the course of the student’s legal education, they are exposed to all three education methods: doctrinal, liberal and practical experience (“legal engineering”). In other owrds, the students can  have their cake and eat it too. Though admittedly, the cake, as if encrusted with pure gold and covered in diamonds, is exorbitantly overpriced. The biggest flaw with the American legal education is not only that it takes forever (especially considering that the Continuing Legal Education requirements for practicing lawyers literally continue so long as they remain in practice), but that legal education in America costs an arm and a leg (and then some). This concern over costs leads us to the main point of this commentary, which is that teaching the law is a business, not just in the US, but elsewhere as well. This means the law schools not only need to balance the interest of the academic community and the demands of legal practice (while managing societal expectations), but they must do so in a cost efficient manner, which restricts what they can and cannot do to provide “better” legal education for their students.

The Legal Education Business

Running a university, aside from its primary objective to educate its students, is to run a business much like running a law firm or a sweatshop. From a purely business perspective, it appears that the American universities are doing it “better” relative to their European or Asian counterparts (see e.g. Harvard, which has an endowment of over $30,000,000,000). The question here is, does the availability of funding offer “better” education for their students? Just to be clear, the purpose of the previous section was not to argue that the Dutch law schools should simply emulate the American legal education, at least not in substance. To do so would directly contradict Smits’ point regarding the diversification of legal education and that is not the intent of this commentary. But perhaps as a business model, the Dutch universities can emulate a few business strategies from its American counterparts by slightly adjusting their admission practices or by enhancing their reliance on alumni networks to generate capital. From this perspective, the debate now shifts from “what kind of a curriculum the law schools should offer to better educate their students” to “how law schools should conduct its business to better educate their students.”

Before continuing this inquiry any further, however, let me be the first to admit that I know absolutely nothing about running a successful business, though I assume having more capital is better than not having any capital. To provide a working theory to the question posed in the title, I would like to believe that although money might provide an opportunity for students to study at an institution with a “higher” reputation (read: ranking) and a “wider” alumni network, in the end, it does not necessarily mean that the students receive a “better” legal education, at least that is my hope (read: naiveté). Moreover, as Smits argues, a sign of a good lawyer is not necessarily the number of years that the lawyer has spent studying the law. It is about having an unquenchable thirst for knowledge and the determination to tirelessly pursue it. In that sense, “better” legal education is something that – in the spirit of Michael Sandel – money cannot buy. Or at least that is how it should be.  Ultimately, the “best” curriculum is the one where both the teachers and the students are curious, passionate and motivated.

The necessary follow-up question then is whether the business interests of the law school (exhibited by the cost of tuition or how much they pay the faculty, etc.) can impact the motivation of the students and the faculty (although in the case of the Netherlands, these figures seem to be fairly standardized). For example, do students that pay more for tuition care more about their studies or do tutors that get paid more, ceteris paribus, have better evaluations than those that get paid less? Although this commentary cannot possibly offer any meaningful answers to these questions [for whatever it is worth, there are behavioral experiments that suggest money does not serve as a strong incentive for people to improve their cognitive functions], the assumption here is that these factors do influence the quality of legal education offered and therefore, how much money the law school has and how it spends it impacts the quality of the student’s education.

One example of this at work that seems to be a reoccurring conversation piece amongst the staff here in Maastricht is the impact the University’s business decisions to enroll more and more students each year affects the overall education that the University has to offer. As Smits notes, law schools gain prestige by “increasing income” and “by doing good research”. In the case of publicly financed European universities, such as Maastricht University, the former is accomplished primarily by increasing the number of students that we enroll (unlike in the US where alumni networks and donors play significantly larger roles). Absent new hires, increasing the number of students obviously adds to the teaching load. Even for the most motivated teacher, an excessively heavy course load takes its toll. In addition, given that the time and the attention that a researcher has is limited and finite, the more time spent on teaching is less time spent on his or her research, given that this is a zero-sum scenario. Though the increase in the number of students enrolled may provide increase in the university’s income and thus its prestige, it is entirely possible that the benefit of such an administrative business decision could impact the morale of the faculty, not to mention the possibility of a drop in the quality of the staff’s research, which is something that could ultimately decrease the University’s prestige. Playing the devil’s advocate to my earlier working theory, perhaps the availability of funding does indirectly lead to a better education as a result. This quandary is obviously nothing new, but in the discussion of designing (or differentiating) methods of legal education, this business aspect of running a law school often seems to go neglected, and on occasions that it is mentioned, it is often used as a reason for why certain measures cannot be implemented.

Conclusion

We must acknowledge the reality that a law school is, at its core, a business that must meet its bottom line. A university must – understandably – generate, at the very minimum, enough profits to keep its business up and running. After all, most universities are not charitable organizations, where anyone can come to get their education for free (though perhaps it ought to be). As a business, a law school must ensure that the product they are selling, its graduates, meet the demands of the academic community, the legal profession and the society. In order for law schools to be able to do so, according to Smits, law schools must become more “conscious” about their aims, what they want to achieve and to make well-reasoned choices for one type of legal education over the others. This commentary suggested that it is indeed possible for institutions of legal education not to have to choose any one type of legal education, but to offer all three, as exemplified by the US system. The obvious problem with this approach is that it is time-consuming and cost-prohibitive not just for the students, but often for the universities as well. Given the assumption that the business decisions of the university often affect the quality of the education offered to the students in one way or another, I hypothesized that perhaps it is in the interest of Dutch law schools to rely less on increasing prestige by simply admitting more and more students at the expense of burdening the teaching staff, but by adopting a more American approach, for example, by building and milking the alumni network instead as its cash cow. This will not interfere with the differentiation of legal education advocated by Smits, but would allow universities like Maastricht to “increase their prestige” in a way that does not conflict with the intrinsic motivations of its faculty. But then again, I know nothing about running a successful business so maybe the status quo is the best we can do…