Gregory Mark
Gregory Mark

After three years as dean of DePaul University College of Law, Gregory Mark on July 1 officially handed over the position’s reins.

Mark, who came to DePaul after 15 years as a professor and vice dean at Rutgers University’s law school, will take a leave of absence and return for the 2015-16 school year as a professor.

Mark sat down with the Daily Law Bulletin this week to discuss several topics surrounding legal education — including the rising cost of law school and the ways accreditation standards and law firm and client demands make it more expensive.

The conversation developed after an interview for a May story about the American Bar Association’s new Task Force on the Financing of Legal Education, an effort designed to study the rising cost of legal education.

Mark, though, believes the ABA’s rules and standards have played a role in making law school more expensive due to demands that law schools reduce costs while also meeting accreditation rules and standards that drive costs up.

One example he cited is the requirement that law schools maintain libraries separate from the rest of the university, increasing expenses.

The underlying rationale to separate law libraries, he said, is “the preservation of the autonomy of the administration of law schools.”

“There historically was a concern that the universities would siphon off resources from law schools,” he said, “which historically were cheaper to run than other parts of the university.”

He continued: “And it is true that for a long time, law schools threw off more money than they consumed. But very few law schools are such a large portion of a university’s budget that the university lives or dies by the excess income from law schools.”

The following transcript of the conversation has been condensed for space. A second installment will appear in next week’s Law School Notes.

Law Bulletin: Does it cost more to run a clinic than it does a regular class?

Gregory Mark: Yes. And that goes back to the point I was making earlier about law schools having traditionally been the vehicles for creating cash within the university.

In the olden days, if you will, you used to have a class of 50, 75, 100, 125 — and one professor up front doing modified lectures. The so-called Socratic method.

LB: “Olden days” — we’re talking …

Mark: Up until fairly recently. And this is pretty standard still on the doctrinal side of classes. The non-clinical classes. So the classes were large. They were taught by a handful of professors in the law school. You had a limited universe of materials that were required to teach them. A law library. And the student-teacher ratio in classes like that was gargantuan.

Clinical education, by contrast, is an enormously intensive hands-on experience. A student-to-teacher classroom ratio of 8 to 1 is considered high, and rightly so, because you’re supervising actual legal work, hour-by-hour, sometimes minute-by-minute, for actual clients.

That requires pretty active supervision since the students who are engaged in clinical work are not lawyers yet. They can’t practice law on their own. They have to be directed in a million different ways. Which is not a bad thing. They’re just learning.

But everything that the bar is now asking for, which is that lawyers be “practice-ready” when they get out there, means that the cost of legal education will go up, because that will require more of that kind of stuff.

So the skills that you learn, while really important as background skills, are only part of what clinical offerings should be. You need to teach people how to negotiate with clients, with counter parties, with government agencies, with regulatory agencies. You need to teach people how to counsel clients.

All of this kind of stuff used to be a function of what it meant to practice law with somebody for the first few years. The current thinking is that this is a too-expensive operation for the law firms’ practicing lawyers to undertake, so it’s being pushed back onto law schools.

LB: Isn’t that driven by clients?

Mark: Right. “I don’t want to pay an associate to watch how this is done.” As a result, those functions are being pushed back onto law schools ... which makes legal education more expensive because something has to give.

LB: So would you prefer to see the ABA lean more on law firms rather than leaning on law schools? Because someone has to train these students, otherwise there are no new lawyers.

Mark: Right. In quiet discussions with many of my colleagues when I was a dean, some of whom have extensive practice experience, they will also confess that they don’t want the law schools doing certain kinds of training.

Firms have different styles, they have things that they do differently from other firms, so depending on the amount of training necessary or the type of training, there’s a lot of learning and unlearning.

Clients who are paying for legal services are the ones who don’t want the law firms to absorb the cost of the training function. ... In other words, if you’re a junior level associate at a firm and you’re billing out at $300 an hour, the client says, “I don’t want to pay $300 an hour for you guys to watch and learn.”

So what are the alternatives? You either don’t hire that person or you play the chase-your-tail game by only hiring away people who have already got two or three years experience at other firms. And there are some firms that do that.

LB: But eventually that pool runs out. Eventually, someone has to hire new lawyers.

Mark: Right.

LB: And someone has to pay for them to learn the skills required to be a practicing attorney, whether that’s the client or the law firm or the law school. It’s one of those three.

Mark: Right. It’s a question of who pays, and there are really only three ultimate people who can pay. The students, who can pay through the tuition. The client, who has to pay directly for the cost of educating. Or the lawyers who employ junior attorneys, who would absorb the cost.

LB: So in your opinion, are the ABA’s efforts to help solve this issue, are these appropriate efforts that they’ve taken?

Mark: I think it’s entirely appropriate for the American Bar Association to be talking about the role of law schools in enhancing the practice-readiness of its graduates. I think there is much less, unfortunately, focus on the role of the practicing bar itself in enhancing the skills of students who have just entered the profession.

We, for example, have no equivalent of a medical school’s residency, which is where doctors learn how to practice. That’s done in teaching hospitals.

We don’t say medical students are practice-ready after four years. They require an internship. Whatever one might say about the practice of law versus the practice of medicine, they are both complicated things, and I think very few people are going to be practice-ready within the meaning that I think lots of people would like to assign to it. They can be more ready to practice law, but they’re not going to be seasoned attorneys.

LB: So even if a law student packs his or her third year with clinical experience, in your opinion, can a law school graduate ever be practice-ready?

Mark: You will not be a seasoned attorney. Your reactions will not be the kind of reactions and insights that you have after you pick up on the culture of the practice of law. But can you start to avoid lots of rookie mistakes? Sure. And I think that’s very important.

LB: So whose responsibility is it? You said the clients can pay, the law firms can pay or the students can pay in the form of higher tuition. Is someone more responsible than somebody else in that trio?

Mark: Look at it this way. A person who takes on the career of law is a law student for three years, and likely a law practitioner for three, four, five or six decades afterwards.

Our job is to introduce students to what the law is and introduce students to what it means to practice law. We can no more turn somebody into a seasoned practitioner than any other professional school can turn somebody into a seasoned practitioner through classroom education or even supervised education.

What we can do is a very sophisticated combination of an introduction to the important questions of law, how to think about law, how to answer those questions yourself and how to begin to translate those skills and that knowledge into assistance for clients under a wide range of circumstances.

LB: But that’s a really expensive introduction.

Mark: It is.

LB: That’s a — national average — $40,000 introduction.

Mark: Yes.

LB: In (a Law Bulletin story in August 2011), you said, “Job placement doesn’t necessarily reflect quality of education. We may well be producing too many lawyers, but penalizing schools that teach well is not the solution.”

Mark: Right.

LB: Don’t students go to law school to become lawyers?

Mark: With a trivially small number of exceptions that I talked about earlier, you can’t really become a lawyer unless you jump over the hurdle of getting through law school. Unless, for example, you’re absolutely certain that you want to stay in a specific jurisdiction and you’re willing to go to a not-ABA-accredited school that is recognized in that jurisdiction, then in order to become a lawyer you have to go to law school, yes.

So I would say the vast majority of people who go to law school want to become lawyers. But not everybody who goes to law school to become a lawyer necessarily wants to practice law.

Lots of people have wanted to become lawyers because being a lawyer is a valuable portion of another profession. Washington, D.C., for example, is populated by tens of thousands of lawyers who do not practice law but are policymakers or carry out policy in a number of ways.

LB: But that’s still job placement. If you want to become a policymaker in D.C. and you say, “I’m going to go to law school to do that,” you’re still banking on a return.

Mark: In the current lingo, that’s considered a J.D.-advantage.

LB: J.D.-advantage, yeah. So you’re still coming here though to help your career.

Mark: Yes.

LB: So I guess the question is: What is a law school’s responsibility? Is it just to teach you about the law? Is it also to put you on the path to find a job?

Mark: Is (helping students find a job) a responsibility? Strictly speaking, no. Practically, absolutely it is, for law schools to assist their students in becoming members of the profession.

Not simply by preparing them for the profession but by creating a forum that can introduce them to the various ways in which their law degree is useful.

LB: So is the ABA, then, the best mechanism to solve this issue, this gap in training in cost? And if not, is there something else?

Mark: It is a vehicle. I think no portion of the profession can or should try to do it on its own. It’s a mistake to burden law schools with the idea that all lawyers who graduate should be practice-ready because no one really understands what practice-ready means. It’s an idealized understanding of what a law school graduate can and should do.

Indeed, one question to ask all of those people who say law students should be practice-ready when they get out is “Oh, so would you hire those people to represent you in a complicated matter?” and see what their reaction is. The answer to that is clearly no, they wouldn’t.

So practice-ready doesn’t mean a certain kind of sophistication. What it means is having a basic understanding of what it means to function as a lawyer. And you get that through the introduction of practice.

But it’s very important that the profession not abandon its role in the continuing acculturation and education of lawyers once they’ve graduated from law school. There’s an educational component that’s inherent in the arc of somebody’s career that cannot be left only to law schools.

LB: You seemed sort of — I don’t know — troubled when we spoke about the ABA’s — you called it their “antiquated requirements” on distance education, library square footage.

Mark: Yes. And some of these things the ABA is already addressing. ... Distance education, I think there’s a lot that we can and ought to understand about distance education as a sophisticated learning tool.

I’m enormously proud of my colleagues (IIT Chicago-Kent College of Law Dean) Hal Krent and (Loyola University Chicago School of Law Dean) Dave Yellen for having instituted a program that DePaul joined while I was dean of allowing certain classes to be taken by any of our law students at any of our law schools. Specialized courses that each of the schools offers.

This is a way to enhance our students’ education, and it’s an enormously sophisticated move, and I think they were great in having been among the first law schools to move in that way.

If, for example, you want to offer a course in oil and gas law, the place to take it is probably not the University of Delaware.

But if somebody happens to be from Oklahoma or Texas or North Dakota or Colorado — wherever oil is drilled for or fracking is taking place — and they want to move back there and they just happen to be in law school at the University of Delaware, it would be great if they were able to, through distance learning, take an oil and gas course at the University of Tulsa or the University of Wyoming or some place that has excellent courses like that.

I think there is some — there is some — effort to allow that to start happening now.