This article originally appeared in The Bar Examiner print edition, Summer 2022 (Vol. 91, No. 2), pp. 32–37.
In this issue’s “Seven Questions” column, we bring you an interview with D. Benjamin Barros, Dean and Professor of Law at the University of Toledo College of Law. Dean Barros joined the College of Law as Dean in 2015. Previously the Associate Dean of Academic Affairs and Professor of Law at Pennsylvania’s Widener University School of Law, Dean Barros practiced as a litigator before teaching. He recently completed a three-year term on the executive committee of the Association of American Law Schools (AALS)—the institutional membership organization for law schools and their deans, also serving as a scholarly society for individual law school faculty and administrators.
The interview was conducted on May 9, 2022, by two members of NCBE’s Communications and Outreach Committee, Shellie Park-Hoapili, District Court Judge for Hawaii and former Chief Staff Attorney for the Hawaii Supreme Court, and Nancy Vincent, Director of Administration for the Illinois Board of Admissions to the Bar; and Claire Guback, NCBE Editorial Director and editor of the Bar Examiner.
We asked Dean Barros about his views on the state of legal education and his advice for prospective law students, as well as his experience serving on the AALS executive committee and a survey he conducted in 2020 about the impact of the pandemic on legal education. The interview has been edited for length and clarity.
Interviews exploring seven questions to elicit people’s unique perspectives on bar admissions.
1. What changes in legal education in the past 20 years or so stand out in your mind as particularly impactful to you or to your law school? And what about the impending “demographic cliff” that is predicted to lead to a significant decrease in law school applications? Do you expect this will impact legal education?
I’ll start by saying that the legal education law students receive now isn’t that different from what I received when I was in law school in the mid-1990s. Getting the JD involves a very rigorous education, which is why it’s such a valuable degree, and I think we have done and continue to do a very good job at providing it.
I think one change that will have the biggest long-term impact, unsurprisingly, is the experience we’ve had in the last two years with the COVID-19 pandemic. Going forward, we’re going to be using more remote technology, for instance, and one of the things I think about a lot as a dean is the future of the workplace, which I think will affect education in general, including legal education. What kind of impact that will entail remains to be seen.
In my own teaching, I’ve taken some of the asynchronous online education techniques I was propelled into learning and using in March 2020 when our university shut down, and I’ve incorporated some into my in-person classes. I think such developments will continue in many parts of society, higher education and legal education included, and that long-term, looking at this historically, this will be a big breaking point in educational trends.
The other thing that comes to mind is that the story of legal education in the past 10 years has been one of enrollment decline—between 2010 and 2015 or so, law school enrollment nationally fell by about a third. Since then, enrollment has come up a little bit, but it certainly hasn’t rebounded to previous levels. I think that’s had a lot of impact on law schools and legal education, as enrollment affects our finances, which is something all of us have to think about.
I think every law school needs to figure out its long-term plan on how to thrive—not just survive but really thrive—at a relatively low enrollment level compared to where it was historically. Here at the University of Toledo College of Law, our enrollment has really rebounded in the last several years, but our faculty is about a third smaller than it was seven years ago, and that’s pretty intentional. Having lived through the last 10 years of enrollment decline, and the last 7 as dean, I tend to be very conservative in terms of long-term planning, and I think most law school deans who have lived through the past 7–10 years are probably going to have the same approach. I really think about not getting overcommitted in terms of cost structure, including faculty and staff.
As for the demographic cliff, which we talk about a lot in higher education, although it could impact legal education in a couple of ways, I’m not sure how profoundly it will do so.
First, when people talk about the demographic cliff, they’re usually alluding to the projected decline in the next several years in the number of high school graduates in the Northeast and in the Midwest, where I happen to be. When you look at higher education in those regions, all universities are fighting for enrollment. When I talk to people in California or elsewhere in the West or in the South, they have the opposite problem—often their institutions have more students than they know what to do with. So, the first thing I want to point out is that it’s localized.
Second, it might have less of an impact than people think, in part because when people come to law school is not as linear as when they come to college for their undergraduate degrees—so if there is an impact, it might be spread out.
Third, historically, we still have a relatively small number of people coming to law school. Although there is a great theoretical debate about whether we had too many people enrolling in law school in 2009–2010, I don’t think we’ve had this low number of people in our population, proportionally, coming to law school since probably the 1970s.
A final thought about the demographic cliff is the indirect way it could affect law schools in relation to the university the law school is attached to. If a university is suffering enrollment decline, that can put various pressures on its law school as well.
2. The US News & World Report publication annually ranks US law schools. How would you describe the influence that this ranking process has had on legal education?
I think US News & World Report has had a uniformly negative and pernicious impact on American legal education. We talk about this a lot in the law school dean community, and it has an outsized influence on our activities. I would much rather be focused on making decisions that are consistent with the mission of my law school instead of trying to improve my school’s rankings.
First, the biggest component in US News is reputational scores. Even if one thinks reputational scores are a good approach to rankings, the problem with US News is its survey doesn’t give responders the opportunity to indicate how much they actually know about the law school—so survey responders are ranking law schools that they might not know much about.
The aspect of US News I most take issue with is that expenditure per student is heavily weighted—the more money students spend, the higher the institution’s ranking—so US News directly contributes to tuition inflation, which I think is really bad for students. It also encourages law schools to increase what we call their “sticker tuition” and then give merit-based discounts—so the higher the sticker tuition, and the more discounts offered, the better the ranking. The problem is that some students always pay the sticker tuition. In my opinion, US News is the single greatest contributor to driving the increase in law school debt.
US News included some student debt metrics this year to measure the percentage of students with debt, but these metrics are very limited, so they’re outweighed by expenditure per student. Ultimately, all the metric measuring the percentage of students who graduate with debt measures is how rich an institution’s students are, so I’m not sure how that is helpful.
And even a piece of the rankings that I think is positive—graduate employment numbers, based on the ABA data tracking employment 10 months after graduation—is problematic. Schools are so tightly packed in their results that relatively small movements in graduate employment numbers lead to big swings in rankings. And what does that tell you about rankings when a 2% movement on one metric can create a major swing?
Overall, I don’t think US News provides reliable or helpful information, and I think it creates perverse incentives.
3. The next generation of the bar exam is tentatively expected to launch in 2026. What are your thoughts about the new exam and what it might mean to your law school program and to your graduates? And do you have any thoughts you’d like to share about the bar exam as currently structured?
I’m very enthusiastic about the new bar exam. I think it will have a positive impact on legal education and on our profession. I have thought a lot about the bar exam since I entered the legal academy and have been involved with NCBE’s Test Design Committee as the new exam began to be shaped. I think it’s a once-in-a-generation opportunity to fundamentally change how lawyers are licensed.
What I like about the new exam in particular is that it is moving away from rote memorization and focusing more on concepts and skills. Nobody practices law closed book, and the need for so much memorization doesn’t make a lot of sense; neither does memorizing detailed rules about certain subjects, as many who go on to become practicing lawyers end up specializing in a particular area of law.
The current exam just doesn’t resemble the practice of law very much. I understand, from a test design standpoint, the utility of the Multistate Bar Examination and its importance for test reliability, but I’m not in favor of multiple-choice questions and the fact that they are so dominant on the current exam. So, I think this shift will be very positive, both in terms of narrowing the subjects—not just the number of subjects tested but the number of subtopics within them—and moving away from memorization.
I think the vast majority of American law schools care about the bar exam. We care about preparing our students for the bar and the profession. As a law school dean, I really like the direction we’re going. But we are now getting to the point where we need to seriously think about how we change the way we prepare our students for the new exam—and require confidence from our courts that this is the direction we are proceeding in—as the new exam will change how and what we teach, which will impact curriculum. I believe this curricular impact will be a positive one that will benefit the profession—again, with more focus on legal concepts and skills.
On a side note, I’m not a fan of the current timing of the bar exam. I wish all law students could take the exam while in law school, because the delay in studying for the exam, taking it, and getting results really has a negative impact on graduate employment. For the 20,000–30,000 law school graduates every year, that’s hundreds of millions of dollars per year in terms of opportunity costs for students.
4. In February 2022, the ABA House of Delegates approved changes to its law school accreditation standards (Standard 303, Curriculum), requiring that law schools educate students about bias, racism, and cross-cultural competency. Although it’s a very recent change, do you have thoughts about what changes these new requirements might have on the way law is taught at your law school or law schools generally?
The vast majority of law schools already address diversity, equity, and inclusion, and at the University of Toledo College of Law, we’ve been doing a lot of work in this area. Being trained in these topics goes to the heart of being a good lawyer. Lawyers represent clients who are different from themselves, so it’s important that they be exposed to different populations and trained in cross-cultural competencies and implicit bias. In a diverse, pluralist society, which we are in the United States, this needs to be part of lawyer training.
Implementing these changes might be challenging, as national conversations about these issues can be fraught. For instance, some states have passed what are typically labeled “anti–critical race theory” laws, and even if they don’t have much to actually do with critical race theory, they certainly touch on these topics. I worry about how law schools in such states are going to navigate the potential conflict between state law and accreditation requirements.
Although these topics are fraught at their heart, in law school we need to talk about difficult topics. It will be important to invest the time and energy needed to do so for our students.
5. You recently completed a three-year term on the executive committee of the AALS. How has this experience affected your perspective as a dean or the way you lead your faculty as they educate University of Toledo law students?
Serving on the AALS executive committee is one of the best and most professionally rewarding things I’ve done. I’m in fact one of the very few people who have served on the committee twice, having also served a one-year term eight years ago.
Aside from giving me a good understanding of the organization, it gave me broad exposure to trends in legal education. But the way it’s really impacted me is by giving me a set of colleagues that I really rely on—especially my first time through, when I was still relatively junior and before I was a law school dean, when I acquired a set of experienced mentors that I still treasure. With professional service opportunities, it’s often the people you get to know and build relationships with that are the real rewards and make the most long-term impact.
More broadly, beyond the AALS, the group of ABA deans is also really valuable to me. The world of law school deans is a pretty small world, and the deans are incredibly helpful to each other; we rely on each other for advice, as there’s nobody else who understands what we go through on a regular basis. The personal relationships I’ve developed are the key benefits from these experiences
6. In 2020 you conducted a survey of law school deans about the impact of the pandemic on legal education, which was later published in the University of Toledo Law Review. Can you talk about why you decided to conduct this survey and what you think are its most important takeaways?
It seemed like a historically important moment, and I wanted to take a snapshot of it—to create a primary source and historical record of how the pandemic was impacting law school deans. The pandemic has been such an odd experience, and I can imagine someone looking at this, say, 50 years from now and perhaps finding it useful.
I think it’s interesting that law school enrollment went up during the pandemic. I think people with bachelor’s degrees, who are our target audience, tend to take the opportunity to invest in themselves in difficult times. Higher education enrollment, at least on the undergraduate level, was down during the pandemic, but law school enrollment tends to be a bit countercyclical in general, and I wouldn’t be surprised if, looking back historically over the last couple of years, this will turn out to be a bit of a Covid enrollment bounce. I actually think 2021 might have been a little bit of a positive abnormality, during the Great Resignation—and it wasn’t just due to Covid itself, but its impact on our economy and people considering what they really wanted to do with their lives, which I think sent some people to law school.
One interesting takeaway from the survey is that, although a small minority of law school deans strongly felt that their decisions were subject to political pressure, the vast majority did not feel like they were under political pressure to keep their schools open.
The survey also showed that some law schools suffered a really negative financial impact from Covid (mine certainly did). Public schools often experienced more of a negative impact because, early in the pandemic, a lot of states were really concerned about the impact on their tax revenues, making those first six months of Covid a precarious time for a lot of schools financially.
Finally—and this is a statement of the obvious but one for which I’m really appreciative to have some actual data—the pandemic was truly harmful to the emotional well-being of our communities, our students, our faculty, and also of deans themselves. The impact on deans’ stress levels was really measurable. I can tell you, from personal experience, that it was significant. I think all of us felt that in our workplaces, especially for the first six to nine months of the pandemic, and it was especially hard being a leader of any organization. There was a lot of uncertainty and not always a lot of guidance; we were worried about the health of people in our community, some of us were worried about institutional finances, and all of us were simply dealing with isolation. It was a very tough time.
7. What advice do you have for prospective law students, in terms of the evolving landscape of legal education, especially in light of the pandemic, and also the significant student debt that most law students face when they graduate? And how does student debt impact you as a dean?
I think there’s enormous value to going to law school. Ask anyone who’s a lawyer and they’ll tell you that law school was an absolutely transformative experience for them. We just had commencement yesterday at my school, and I reminded the graduates that at orientation, I had told them that law school was going to change how they think and that I hoped they understood—and I think they did—how true that was.
I also think law school opens many doors—in the practice of law, of course, but also more broadly. As I said earlier, it’s an incredibly rigorous education, and that’s what I think makes it so valuable. But it’s also expensive, and even at a low-cost public school like mine, it’s expensive in terms of time. It’s three years, and it’s going to cost, no matter where a student goes. So, I’ve never thought that law school should be a place where someone goes when they can’t figure out what else to do with their lives.
I think law school is great for people who really want to become lawyers, but there are also people who want a legal education for some other purpose, which is equally valuable. I would say to prospective students that if they really want to go to law school, there’s nothing better, but if they’re waffling, they should make sure that’s how they want to invest the time and money.
I would also tell students to think about debt and how that’s going to impact them. I’m not sure prospective law students can really appreciate what $200,000 worth of debt is going to mean before they’ve been out on their own—I certainly didn’t when I was 22 years old, but from this perspective years later, it really matters. I would advise students to carefully consider that.
Also, I would tell them to think about what they want to do. If they get into a top-ranked law school and want to work at a big firm (which I did and really enjoyed), that’s fine, but if they really want to be a local prosecutor, which is also a great career, do they really want to do that with $200,000 worth of debt?
In terms of law school debt generally, different schools have different missions, which affects their debt ratio. The University of Toledo College of Law is a very reasonably priced public institution; our students graduate with among the lowest debt of any law school in the country. From my perspective, I personally would advise law students to go to law schools that are more reasonably priced, whether they’re public law schools with a lower tuition structure or schools offering merit-based discounting, and take on less debt.
One of the things that is pernicious about US News is that it convinces students that they should pay full tuition to go to a law school that is ranked 55th, rather than accepting a substantial scholarship at a law school that is ranked 90th, and honestly, I don’t think there’s much difference in the legal education the student will receive between the two. I think the rankings really encourage students to think that they should go to the most highly ranked school. Students have a lot of control over the debt they take on.
I really believe in the value of a legal education, and in the value of a legal education even at a higher-cost school, but the amount of debt a student takes on will impact their personal life and their career options. The bimodal entry-level salary distribution means that only a small number of lawyers will start out making, say, $180,000 a year, with most starting out between $60,000 or $70,000. Salaries of course often go up with opportunities to increase compensation—but I’d much rather graduate from law school with $40,000 or $50,000 of debt instead of $200,000.
In terms of how law school debt impacts me as a dean, it does so in an interesting way. At the University of Toledo College of Law, we provide a great legal education without charging that much tuition, which means I have less tuition revenue available, so we have to be very lean as a public law school. But I think we and other public law schools do a great job of providing an excellent legal education in a way that students don’t have to take on a lot of debt.
Final Thoughts: What advice do you have for prospective law students, in terms of the evolving landscape of legal education, especially in light of the pandemic, and also the significant student debt that most law students face when they graduate? And how does student debt impact you as a dean?
I’m most proud of two things my law school collectively has done in the last seven years. Our enrollment has rebounded substantially, and we also rightsized ourselves. As a leader, you always want to grow, but what I really want to do at the University of Toledo College of Law is to be well-positioned to thrive in the future.
I think the middle of the last decade was a really challenging time to be a law school dean. While it’s always a challenge, that period was really hard in particular, so helping us steer through that and get to a point where we’re really well-situated to thrive in the future is something I’m really proud of. It’s been a team effort, and our faculty and staff have done a great job.
Although it sounds a bit strange to say that I’m really proud of shrinking, I think, for the situation at that time, that’s what was needed. And then, at the end of 2019 and beginning of 2020, when I thought we were finally past that crisis and that we could start thinking about big-picture goals for the future, the pandemic happened, and we had two years of needing to navigate a different crisis. I’m finishing my seventh year as dean and it feels like there’s always been a crisis, but I feel like we’re in good shape, and that’s really positive.
I’m really optimistic about our continued great trends on diversity, equity, and inclusion in legal education and as a profession. If you compared a picture of the ABA law school deans 20 years ago to one today, you’d see a big difference, which is such a positive trend and one I think will continue.
Finally, I also hope that the new bar exam has a successful rollout. I think it’s incredibly important and that it will be very positive for our profession, for candidates, and for legal education overall
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