Courses, Disaggregation, and the Cost of Legal Education

In this Thursday, Feb. 2, 2012 photo, students walk through the campus of Claremont McKenna College in Claremont, Calif. When
In this Thursday, Feb. 2, 2012 photo, students walk through the campus of Claremont McKenna College in Claremont, Calif. When US News & World Report debuted its list of “America's Best Colleges” nearly 30 years ago, the magazine hoped its college rankings would be a game-changer for students and families. Arguably, they've had a much bigger effect on colleges themselves. A senior administrator at Claremont McKenna, a highly regarded California liberal arts college, resigned after acknowledging he falsified college entrance exam scores for years to rankings publications such as US News. The scale was small: submitting scores just 10 or 20 points higher on the 1600-point SAT math and reading exams. (AP Photo/Reed Saxon)

The core activity of an American law school is its J.D. program of education. The program delivers to students a cluster of knowledge, skills, and competences, as well as a degree. These outcomes result primarily from the work of the faculty. The heart of the current law school business model is providing services leading to these outcomes in exchange for tuition. The model has many flaws.

One major flaw is that tuition appears to rise ceaselessly, at a rate higher than general inflation. This price trajectory has multiple sources. A key cause is that the largest part of the cost of delivering J.D. education is compensation, and it has been difficult to improve productivity in law school educational services. Without productivity gains to offset the general tendency of compensation costs to rise, the cost increases are passed straight through to students.

A reason for the difficulty in improving productivity is that educational outcomes are delivered to students in chunks called "courses," in which a faculty member acts as a craftsman, providing all the services in an interactive, face-to-face setting. Law schools use this technique because they believe it ensures high quality in educational services and outcomes. In fact, it generally succeeds in ensuring quality, but is also expensive. The challenge is to lower cost without lowering quality.

The standard approach to this challenge is to use lower-cost labor -- generally adjunct or short-term contract faculty -- to deliver the same services and outcomes that more expensive, regular faculty members could deliver. This approach controls compensation costs to an extent, but is limited by concern that substituting adjunct or short-term faculty for regular faculty, if carried too far, might reduce the school's ability to provide other services and jeopardize overall program quality.

The standard approach treats a course as a black box, with only one cost component. Consider a different approach, where we look inside the box. Treated as a complex process, a course (to a first approximation) has five main elements: course design, course management, content development, delivery, and student assessment. On this understanding, we can disaggregate the elements of a course and work to reduce cost on a component-by-component basis. This may involve different persons taking responsibility for different course elements.

Disaggregating course elements is not as unorthodox as it might first sound. Law schools already do this; they simply do not call it "disaggregation." For example, it is very common to outsource a significant portion of one component, content development. A faculty member will typically assign a published casebook or other collection of source material, rather than assembling course materials himself. Doing this has the potential to reduce the total cost of producing and delivering a course, in particular by freeing a faculty member to devote time to other course components. It also makes it easier for faculty members to take on new or additional course responsibilities.

This is not the only example of disaggregation. Course management is sometimes partially separated from delivery: a full-time faculty member may develop a course framework that uses many guest lecturers. This is especially common for courses offered in summer abroad programs. Again, disaggregation here can reduce the cost of producing and delivering a course (by using lower cost labor for part of one component) and can free the regular faculty member who manages the course to devote time to other responsibilities.

To take another example, in some courses delivered in many small sections (such as legal writing or trial skills), course design may be disaggregated and a standard syllabus and teaching methodology developed by a director. This division of responsibility can promote course quality (by having a highly experienced person design the course), lower the cost, and free faculty members to devote time to functions other than design.

One last example involves externships, where students receive credit for work under the supervision of an attorney or judge in a practice setting. In externships, although most of the delivery takes place in a practice setting under the supervising attorney, assessment is delivered by a faculty member (who ordinarily is not the field supervisor). This lowers the cost of a course by focusing the high-cost labor (the regular faculty member) on only one part of a course, making externships a low-cost but potentially high quality educational opportunity for students.

These examples suggest how disaggregation of course elements has the potential for cost savings and productivity increases, for example by outsourcing some or all of a component or using lower cost labor in a component, and by freeing faculty time to take on additional responsibilities (for example, additional courses). But it has even greater potential. Disaggregating a complex system into component processes is a standard practice in managing organizations. It is the foundation for process improvement, which can often achieve both quality improvement and cost reduction. Process improvement has had wide success in businesses and other organizations. However, it is little used in law schools. In particular, courses are treated as irreducible units, and cost- and improvement-related thinking focuses only on lowering the compensation cost of the sole service deliverer, or on spreading costs over a greater number of students (e.g., through distance education).

Law schools already disaggregate courses; they just do not do it systematically or with the aim of improving a component or reducing its cost. But in principle there is no reason it cannot be undertaken systematically and be coupled with initiatives to improve component processes and reduce their cost. It will not solve all the problems, but it is a tool that can be part of a larger solution.