SO, WHY DO YOU WANT TO BE A LAWYER?¾WHAT
THE ABA, THE AALS, AND US NEWS DON'T
KNOW THAT WE DO
Ronald A. Cass
Boston University School of Law
Anyone thinking of law school
inevitably confronts the question, “So, why do you want to be a lawyer?”
Admissions applications ask that. Friends
ask it. Family members, too. It’s
a good question, and a good starting point for understanding what law schools
The first thing the question forces us to confront is the fact that
answers differ. Not that there is
an endless variety of answers. Many
are similar: To help people. To
make a difference. To make money.
To keep options open. To
advance a career in politics, in public service, in business.
To help promote a cherished cause. To
satisfy intellectual curiosity too broad-ranging, or too tied to practical
application of ideas, to fit comfortably within other, better-defined academic
Though it’s a familiar set of answers, it also is a large enough set to
compass significant differences among our students.
Students do not, of course, know when they enter school what they will do
with their legal training when they leave.
Even those of us well along in our professional lives find our views
changing, evolving still as to what we truly want to do.
The students’ answers, however, are a starting point in identifying the
type of training that is likely to be best suited to the lives they will lead.
Their interests provide information relevant to decisions of about
where to attend school, what to study, how to prepare for what they expect to
Plainly, this is not all of the information needed to chart out a course
of study. The point is not that
students should be narrowly channeled at the start of their law studies, tracked
along the lines of their ideas of what they want in a legal career. Nor is it that students’ different answers mark out
completely different sorts of study¾that,
rightly conceived, law study lacks a central core that all students should
Whatever we purport to teach, the most important and most durable
teaching in law school is teaching how to think carefully, teaching basic legal
reasoning, teaching modes of inquiry. Little
of the specific information we give our students will stick with them.
That is true of our very best students as well as our worst.
A young colleague of mine tested this proposition by posing a series of
hypothetical problems to faculty members that presented basic questions covered
in first-year Civil Procedure courses. We
did quite well at spotting the issues, at understanding the problems. And we were, by and large, miserably off target in getting
the answers right. If specific
information isn’t retained, the clear implication is that we should take care
to understand how best to convey methods training.
The faculty’s test also suggests¾albeit
efforts at conveying specific information narrowly targeted to students with
particular interests probably involve considerable wasted motion.
But students do differ in interests, in attitudes, in instincts.
The same methods of instruction do not work well for everyone, whether
we’re training students in general, analytical processes or attempting to
transfer specific factual information. By
the time students are 22 or 24 or 30 years old, much of the difference among
them is captured in statements of their own preferences and goals.
The student of intellectual curiosity who is pointing toward an academic
career (surely not the only career for
the intellectually curious, but a plausible one) probably does not learn in the
same way as the student who is quite pragmatically focused on business.
The student who burns with a passion to argue cases to juries probably
does not learn best in the same mode as the student intent on a career in tax
planning. The student anxious to
protect the environment probably will engage more readily and extract lessons
more fully from teaching focused on environmental problems than on intellectual
property disputes. Perhaps certain basic methods and materials work well for
almost everyone, but the key to good teaching is matching instruction to
students’ particular aptitudes and interests.
That is why great teachers spend so much of their time preparing lessons
for each new class¾even
though they know the material well, the art of teaching requires fine-tuning
aimed at making the presentation right for this
group of students.
That also is why, when someone asks you where he or she, or her son or
daughter, should go to school, your first response is not an answer but a
question: why are you going to law school? what do you want to do? We then give different answers to the question we were asked,
depending on the answers to our questions.
We recognize that schools differ and that the right school for one person
isn’t necessarily the right school for everyone.
We tell applicants that, too. We
tell friends the same thing. We
explain to prospective donors that, much as we would love the proffered
donation, our school is not the right one for their son or daughter.
And we mean it. Which brings
me to US News.
Rankings: Useless Noise?
The US News organization has been enormously successful in selling
magazines with its rankings of schools of all variety.
Where law schools are concerned, however, variety is scarcely recognized.
At the outset, unconcern with variety follows from what seems to be a
divorce from real concern with serious assessment of the quality of the
education law schools provide. The US
News rankings look at criteria that cannot possibly capture critical aspects
of legal education. They do not
measure, or even encompass a good proxy for, among other things, the quality of
teaching, the scholarly product of a faculty, the mode of instruction, the
nature, scope, and organization of the curriculum.
Apart from what is missing entirely from US
News, the rankings criteria that are used dramatically mislead consumers as
to what in fact is being measured.
Job placement, for instance, is now a ludicrous, self-reported statistic
that ignores totally almost anything one should want to know about the way a
choice of school affects job prospects. It
contains no measure of the quality of jobs obtained, the fields in which jobs
are obtained, the geographic reach of placement opportunities, or even if the
jobs have any connection to law. The
US News methodology counts a counter
job at McDonald’s the same as a prestigious judicial clerkship, an
associate’s position at Covington & Burling or Skadden, Arps, or another
highly prized, top-flight legal job. A
school that has no graduate placed in any law job can rate on this measure above a school that places most of its graduates in the most
sought-after jobs. Among other
reasons, for graduates of the latter school, the likelihood of landing a good
law job is apt to be high enough to induce graduates who do not secure one right
away to hold out for one rather than settle for a less attractive position.
None of this is anywhere accounted for in the ranking.
The list of problems with US News
is long and well-known. The RAND
critique of US News is devastating.
But potential students don’t have the same easy access to the RAND
study as they do to US News.
For them, the magazine appears to offer an objective ranking of
educational quality. It provides an
easily understood mark and places all schools on the same scale.
Unfortunately, this linear ranking not only misleads students about what
is being measured and what the measure means¾it
also undermines the very education it purports to assess.
First, because it affects student decisions, schools divert real
resources from the task of providing a high-quality education targeted to a
particular audience. Instead, those
resources go to the newly important task of influencing the school’s ranking,
which no longer can be expected to be influenced primarily by the real quality
of the education offered. Each law
school dean (and I’m sure many other faculty members and administrators as
well) receives stacks of material letting us know all about developments at
every other law school. Though all
of us are curious about what others are doing, that curiosity is more than sated
for even the most inquisitive education junkie long before one has waded through
even a small fraction of the material.
This is an expensive game designed to influence our ranking of other
schools when we respond to the annual queries from US
News. And it seems a worthwhile
investment not only because the ranking is influential but also because those
who fill in the US News survey know so
little about the schools they help to rank.
A highly placed officer of my university has suggested quite colorfully
what the typical respondent is¾and
to know. Suffice it to say, few of
these respondents would like to be held to the standards of expertise that Daubert
adopts for expert testimony in court. But,
just as inexpert testimony makes for “junk science” in litigation, it makes
for “junk rankings” in journalism. Only
here, there are no controls. So we
continue to sell ourselves to one another the way one might sell soap, confident
that the average level of knowledge is low enough for such strategies to be
availing work. And we
continue to take resources away from better compensating faculty, from smaller
class size, from a richer curriculum, or from any of the myriad better uses that
would be made of this money in a world less affected by US
Second, the magazine encourages all schools to compete along the same
lines, to stress the same qualities. For
instance, in selecting entering students, schools increasingly attend to the
qualities US News values in its
ranking. These qualities may be the
ones that many schools would prize in any event.
But schools that would have valued other attributes more highly are
penalized now for doing so. And,
because here as in so many other aspects of its methodology, US
News measures inputs rather than outputs, there is no advantage to being
different, to actually using different
inputs to achieve a better result. So
long as real outputs largely vanish from the rankings, as they do with US
News’ evaluation of placement success, schools are encouraged by the
ranking process to greater similarity than would be ideal in a non-US
News world. This leads directly
away from what we know would better educate students: a set of more diverse
educational opportunities that could be matched to a diverse set of students.
To be sure, US News has heard
this complaint and has responded by highlighting a few specialized programs.
This is laudable. But, like much of the US
News approach, it also is laughable. It
is based on the same sort of information as the basic ranking, with respondents
knowing so little about these programs that schools with no
program for J.D. students in a given specialty will rate highly on the basis of
a well-publicized LL.M. program. And
that publicity is more effective than other investments in affecting this aspect
of US News, just as with its broader
ranking effort. Many school
embarrassed at this diversion of resources, enough to invest a great deal in
real improvement rather than in publicity.
But we recognize that indulging our embarrassment comes at a price when
the rankings issue hits the newsstand.
This broadside is certain to earn me no friends at US News. It earns no
credit among academicians for new insights.
But it accurately depicts a ranking process that misleads consumers,
reduces resources available to educate students, and encourages too-great
similarity among schools.
All of the major organizations in
legal education have united in condemnation of US News. Among these
are: the organization that tests and evaluates would-be students, the Law School
Admission Council; the organization representing most law school deans, the
American Law Deans Association; and the two primary accrediting bodies for
American law schools, the American Bar Association’s Section on Legal
Education and Admission to the Bar (ABA) and the Association of American Law
These last two entities, however, have a great deal in common with US
News. Both accrediting organizations have pushed hard to make US
legal education more homogeneous, to encourage schools to focus on inputs, and
to divert resources from their best uses for legal education.
Those, of course, are not the avowed aims of these organizations or of
their leadership. Quite the
contrary. The leaders of the ABA
and AALS have been concerned with improving legal education.
They have fought to keep at bay efforts they see as impeding educational
quality. And they have fought to
assure that the factors they view as important to quality determine which
schools are approved to produce applicants for the bar and which are admitted to
the fraternity of American law schools.
The reality, however, has been decidedly different from the intent.
Legal education still is a competitive business.
Schools are not all the same, and we have incentives to trumpet our
differences in certain venues. But
the impact of ABA and AALS rules plainly is to make schools less
different than they otherwise would be. The
ABA, for instance, regulates our decisions about how many full-time faculty to
use relative to part-time faculty. ABA
rules regulate choices respecting the organization of responsibilities for
school governance. They restrict
what resources to devote to libraries versus other parts of the educational
enterprise. They control what
activities students can engage in while in school. The AALS regulates school policies respecting the entities
that can recruit prospective employees on campus, the composition of faculties
and student bodies, and a number of related matters.
Each regulation may well represent what many schools would decide in all
events. They may provide reasonable norms of good conduct for most types of
legal education and for many types of students.
My own biases are that good legal education is far less determined by
library space-per-student than by the real quality of instruction; that it is
less well measured by the tenure protection provided to clinical faculty than by
the jobs obtained by students; that it does not depend critically on faculty
control of decisions respecting school administration but does depend on the
commitment faculty members make to their students.
Those biases are well-known to my fellow deans, shared by some, rejected
by others. Fair enough.
Even those who applaud the choices embraced in these regulations should
concede, however, that all of these regulations prohibit some choices that would
flourish in a less regulated market. If
that were not true, there would be no point to them at all.
All of these regulations make innovation in legal education more
difficult. All of them value
certain choices more highly than openness to different choices.
All of them make the law school world a less diverse place than it
otherwise would be. The regulations
represent the conceit that the regulators can tell everyone what type of legal
education is right for them¾and
that the answer is pretty much the same for everyone, regardless of background,
of interest, of goals. They
represent, in short, the same kind of vision that animates US
Just as aspiring law students
inevitably are asked why they want to be lawyers, candidates for deanship
ineluctably face their own version of that question, “So, why do you want to
be a dean?” Descriptions of
psychological problems are among the answers one’s associates might offer.
So, too, are catalogs of past professional failures, the sort of travails
that would drive one to attempt something¾anything¾new.
These are not, however, the sort of answers expected of someone who would
purport to lead a school. If deans
are leaders of their institutions (the supposition this symposium asks us to
be expected to have some vision of where we want to lead and why it is important
to go there. No dean candidate will
say, “Because I want to spend countless hours fighting with US
News;” or “because I long to fill out ABA and AALS forms, to answer
their questions about my school’s placement policies or library space.”
No dean candidate will answer “because I want to see that we allocate
school resources exactly how the ABA tells us we must.”
And few will say simply “because I want to raise our ranking in US
News,” though that will be part of the message many candidates will convey
in one form or another.
There is good reason that these answers will not be given. Apart from the absurdity of the ends as desirable goals, all
of these answers point to sameness, to doing what is required or expected in any
case. Leadership points in the
opposite direction. Leadership
implies difference. It supposes
that the person leading is free to mark out a direction and to head toward it
even though others think it wrong-headed. The
test of leadership is not only getting folks to follow, but going in a direction
that turns out to be better than the route a crowd, wandering on its own, would
travel. Not necessarily better for
everyone. Not necessarily better if
everyone else did the same. But
better for some group that is willing to strike out on a different road.
The first roadblock to leadership in legal education, then, is the fact
that so many institutional forces in the world of American law schools today
press toward sameness, not difference. That
is the impact of US News, of the ABA,
of the AALS. Like it or not, they
narrow the scope within which schools can distinguish themselves.
Perhaps it overstates matters to cast this as a circumstance at odds with
leadership. Certainly, one can be a
leader by changing these institutions, and many law school deans over the years
have played important roles in shaping the ABA and AALS, as well as other
organizations. Most deans who have
played important roles have shared the basic vision of these organizations, but
have altered it in some respect, extending it to fit a somewhat different vision
of sound legal education or of the way particular organizations should interact
with law schools.
Leadership within a law school,
effort to make a school do something distinctive for legal education, improve
the educational product in some manner¾is
another matter. The triad of
institutions mentioned already makes this kind of leadership more difficult.
Yet, for most deans, those three institutions present peripheral, not
central, problems. The first
reality to confront a dean is the difficulty of actually making a difference, of
making one’s institution different, given the nature of internal
constraints. The default rule in
any institution is whatever is.
That default is pretty near conclusive when what is
also has been for a good while. Non-profit
institutions are more difficult to move than profit-oriented enterprises, as
success does not produce a pool of residual earnings that can be distributed in
ways everyone can appreciate. And law schools are not simply garden-variety non-profit
institutions. They are non-profit
institutions where large numbers of employees have life tenure but also have
unlimited “free agency” from day one. They
are institutions in which our consumers are also our products.
They are part of larger academic institutions often led by people who do
not value legal education except so far as it generates financial support for
more cherished academic ventures.
These are not insurmountable problems.
And they are not ones about which I have standing to complain.
I came to the deanship more than a decade ago believing that legal
education needed to change, to become more international, more
interdisciplinary, to place more emphasis on the quality of the instruction we
offer. I thought that we needed to
provide more cumulative learning and more opportunities to study problems in
depth. And I thought that our
profession needed to pay more attention to the way the legal system is designed,
the problems it generates, the ways it can be improved.
At that time, the changes those views suggested for legal education would
not have been well received at many places and no doubt would not have been
right for many places. My views on
what legal education needed suggested more specialized training opportunities
than were then being offered save at one or two schools.
They suggested more stress on teaching than “good schools” typically
deemed appropriate. They suggested
more research efforts than generally were found at schools with an emphasis on
teaching and more coordinated research efforts than were common even in
research-oriented schools. They
suggested more focus on the cost side of the legal system.
They suggested increased attention to what our consumers want, to what
they need, to what lives they will live¾and
less attention to what regulatory bodies want.
I have been privileged these past ten years to be dean of an unusual
place. It is a place in which the
University administration has been supportive, underwriting a transformation of
the law school at the expense of resources coveted¾and
other parts of the University. It
is a place in which faculty members have redoubled their commitment to teaching
even while raising their scholarly output.
The faculty has supported substantial curricular change, despite
considerable initial skepticism about it. Students
have pitched in to help alter the tone of what once had been seen as the
equivalent of a “brownfield” in terms of the social milieu.
Alumni of the school, in addition to being professionally successful,
have become prouder and more supportive of the school.
Part of the privilege of my deanship is that the people connected with my
school have given me the illusion of leadership.
They have allowed me to see our school as striving for a distinctive
education. Not as striving for a
product radically different from others¾that
goal would be out of keeping for one who believes that legal education is, in
the main, a success¾but
for a product that is tailored to be right for our students and our location and
our history. People have allowed me
to take credit for what so many others have done to improve our school, the
ultimate illusion of leadership. And
they have allowed me as well to spend time complaining about US
News, the ABA, and the AALS. Here
I go again.