How to kill (or save) a law school

Back in August 2010, I wrote a post called “How to kill a law firm” that continues to receive a steady stream of traffic and responses. Recently, John P. Mayer on Twitter suggested it was time for a law school version of that article. I agree.

My interest in applying a legal education focus to this topic was further heightened by the recent publication of two op-ed pieces by law school deans: This one by the dean of Case Western University Law School in The New York Times and this one by the dean of the University of Ottawa Faculty of Law in Canadian Lawyer. You can also read thorough critiques of each article at The Girl’s Guide To Law School and Slaw, respectively. The articles and their responses neatly frame both the enormous challenges facing law schools and the apparent inability of their leadership to appreciate those challenges.

My goal, I should probably make clear, is not to help annihilate law schools across Canada and the United States — I like law schools, and I hope they prosper. Nor is my goal to create a road map for potential competitors to carry out that destruction — believe me, they don’t need any road map sketched out for them. The schools have all but drawn up the blueprints themselves, although they don’t realize it.

What I want to do is encourage law schools to participate in an exercise around creative destruction. I want them to think: if a new competitor for the role of legal education provider were to target us, how would they do it? If they wanted to knock us down and replace us, how would they go about it? What weak spots and vulnerabilities in our model would they attack? What market needs, unmet by us, would they strive to meet? Then, once they’ve identified their strategic exposures, I’d like law schools to exploit those vulnerabilities themselves first, before the upstarts can do so. The world’s most successful companies, from GE to Apple, do this regularly — they set out to destroy their own business before anyone else can. Law schools badly need to do the same.

Finally, it’s worth explaining who I mean by “competitors.” Most law school faculty and administration would probably dismiss outright the idea that they have any competition at all, except for other law schools that operate exactly the same way they do. This tunnel vision itself qualifies as a major vulnerability, but we’ll let that pass. The primary competitors I have in mind are:

  1. low-ranked law schools in danger of closure and therefore with nothing to lose from experimentation (i.e., the “fourth-place network”);
  2. universities or other licensed educational institutes without a law school but seeking to create one clearly differentiated from the current model;
  3. non-academic business training providers already aligned with the “practical skills” demands of both students and law firm recruiting directors; and
  4. the legal profession itself, through governing bodies or bar associations, moving to create competing legal education programs geared to their needs.

There are almost certainly others out there, especially in the rapidly expanding online education sphere (Solo Practice University has been building its lead there for several years now), but we can start with these four because they’re all plausible present-day candidates for disruptive market entry.

So, with all that established, let’s start noting the weaknesses in law schools’ current approach to the market. As you’ll see, there is no shortage.

1. Price. The first and easiest pressure point to identify is the price of a law school education, which at almost every school in North America has risen by multiples of 100% over the past 15-20 years. More affordable tuition would be a legitimate drawing card for good applicants, and it’s a sign of law schools’ cartel-like behaviour that few if any schools have pursued this path.

Is it realistic to expect a challenger to offer a robust legal education at below-market prices? I think it is, because almost all the factors driving up the price of law school are institutional, not curricular — that is, they have everything to do with internal educational politics or arbitrary external forces, and little to do with the quality and substance of the law degree itself. We’ll examine these factors in #4, below.

2. Faculty. The single greatest impediment to law schools’ ability to change is their faculty. Many if not most law school faculty members have held their positions for decades and are fully insulated from outside pressures by virtue of both tenure and age-discrimination laws. They are researchers and publishers first, teachers second or third. Most have never practised law (at numerous schools, more than two years in a law practice disqualifies law professors from tenure) and they have no interest in the Bar. They fight change almost as a matter of course. They are a millstone around the law school’s neck when it comes to innovation.

It will take at least 5-10 years for attrition to solve this problem at most schools; in that time, new entrants can make their move. Legal education disruptors will identify respected practitioners, retired judges, and even non-lawyer experts to lead their courses. They will train these individuals in 21st-century teaching methods, assign them courses with tightly controlled syllabi, and operate a streamlined and strategically coherent educational system. They will recognize that extensive academic pedigree, admirable and worthwhile as it certainly is, is neither a necessary nor a sufficient qualification to teach the law.

3. Curriculum. Closely related to the obstacle of faculty is the conundrum of curriculum. The first-year courses mandated for students at my alma mater today are the same as when I enrolled 22 years ago and have not changed substantially since the 1950s. The menu of optional courses has expanded significantly, especially those taught by “adjunct” (freelance) faculty, but most are still delivered as lectures and graded by exams, as if everyone involved were still in junior high. But the primary vulnerability is and always has been the paucity of courses that strive to prepare future lawyers in some way for their first few years in the marketplace.

Law professors are fond of saying that it’s the Bar’s responsibility to prepare students for practice, not law schools’. But that is precisely the point they miss — it isn’t a question of responsibility, but opportunity. What courses might a school teach that would differentiate it from other schools and prove more attractive to both students and recruiters? What programs could it create that would bridge the gap between basic legal knowledge and initial professional competence? That’s the opportunity most (but not all) schools continue to miss, and it’s one that new providers will exploit.

4. Status. This is, in some ways, the most important vulnerability, because it goes to the heart of the current legal education system. Defenders of the law school status quo will say that these foregoing points are very nice and all, but they’re also irrelevant: law schools’ ability to innovate is utterly constrained by external factors.

Two factors in particular dominate the conversation, in the United States at least: the ABA accreditation process and the US News & World Report rankings. The former mandates a minimum amount of infrastructure investment to obtain and maintain accreditation; the latter holds so much sway among applicants and recruiters that schools are forced to act foolishly (and sometimes illegally) to squeeze their programs into the rankings’ pre-defined mould. A third factor, receiving increasing attention recently, is the role of the university itself, which counts on the law school as a steady and ever-increasing source of revenue and which places immense pressure on law school administrators to keep the money flowing in.

Combine these external forces with the internal albatrosses of faculty self-interest and institutional inertia, the defenders say, and there’s no blaming law schools for acting the way they do. And perhaps they’re right.

But I can tell you this: that doesn’t matter an iota to the disruptors that are targeting law schools right now. They’re thrilled to see so many arbitrary constraints on legal education incumbents, because they can choose to be entirely free of them. They can ignore ABA accreditation or the US News rankings if they wish. They can refuse to enter a losing game, to accept the same shackles that are paralyzing law schools. Think about it: why would they want to acquire the incumbents’ handicaps?

The biggest advantage that legal education disruptors have today is that they can enter the market unencumbered by the legacy burdens of law schools. They don’t have to be big, important, recognized and expensive — they don’t need “status.” They can be small, modest, flexible and affordable — or at least, they can start off that way. They can align their strategies with the interests of their target market, not those of their teachers or their affiliated academic institutions. They can negotiate directly with Bar admissions officials and satisfy them as to both the academic and practical merits of their degrees. They don’t need to compete for all “the best and the brightest” applicants, whatever that means: they can target the students they want to attract and the employers (law firms, law departments, governments, individual clients) they want to connect those students with.

Innovators don’t duplicate the existing model; they improve it. No new private legal enterprise today would copy the AmLaw 200 partnership model, and no new legal education provider would copy existing law schools. Disruption in legal education is poised to come from innovators that reject the standard assumptions about what a legal education provider looks like, where it’s housed, who it employs, who it recruits, what it teaches and how it’s taught.

That, I think, is how you kill a law school. You come to understand, better than the law school does, exactly what business it’s in, exactly what its inventory is, and exactly who its customers are. And then you figure out where the law school has failed to meet those needs, and you rush to fill the gap.

So, then — how do you save a law school? If you’re in a school today and you find this scenario frighteningly plausible, you’re probably wondering what you can do. Here are my brief closing suggestions about self-destructing a vulnerable model.

1. Make it clear that you’re on the side of the angels. Law schools are weathering one of the most intense instances of continuous negative publicity the legal marketplace has ever seen, although many schools seem blissfully unaware of it. Don’t underestimate the power of publications like Above The Law or the “scam blogs” to create the lens through which your markets perceive you. Right now, many law schools are viewed (with some justification) as either actively antagonistic to students and the profession, or quietly complicit with those that are. As you kick off your efforts to reinvent your school, make sure that your honest, well-meaning efforts are publicized and that you are seen to be on the “reform” side of the ledger.

2. Send differentiating signals to both recruits and recruiters. Law schools get into trouble when they forget what business they’re in: getting paid by students to help them obtain gainful employment in the legal field. (Sorry, but that’s what their business is.) Most law schools have forgotten this, and maybe yours has, too. Those few law schools that have achieved clarity in this regard are carving out new brands that will appeal to these players (Washington & Lee for its practice-based third year, Michigan State for its computational legal studies, University of Miami for LawWithoutWalls, etc.). Create a standout innovative feature — a bridging program, a CPD offering, an Innovation Center, a solo incubator, or something brand new — and join with a private-sector partner to deliver it.

3. Change the weather around your faculty. Intransigent professors, in many cases, may simply have to be waited out for a period of generational change. But there’s no reason you can’t accelerate the attrition process. Encourage changes to the school’s strategy and direction, introduce more practice-related courses, increase dialogue and project partnerships with practitioners and in-house counsel, provide more guest-lecture spots for local sole practitioners, and so on. Basically, change the environment surrounding your faculty — the “tone” of the school — wherever you can. Your faculty members might still consider the law school to be their retirement property, but if the weather clouds over, they may be motivated to move to sunnier climates sooner rather than later.

4. Think hard about blowing off the US News rankings. Most law deans would probably blanch at the thought of dropping out of the US News lists, fearing a catastrophic response from both applicants and recruiters. But I think every school should at least consider it, if for no other reason than to regain some self-respect and control over your destiny. Look closely at the US News criteria and ask yourself: do they align with what we’re trying to do here? Is it fair to our students, our faculty and our mission that we dance to this tune? If the answer is no — and in many cases, it will be — then I think it’s time to leave the dance floor. Build an airtight publicity and communications campaign explaining why you’re ignoring US News from now on, with supportive testimonials from high-profile employers, and test-drive it with major donors. Then go do it.

5. Think equally hard about whether to keep ABA accreditation. This would be far more difficult for most law faculties to justify dropping, and maybe impossible, given various jurisdictional requirements. But the same principles that apply to US News apply here: do the requirements of ABA accreditation line up with the key strategic drivers you feel your law school must feature? If they don’t — if they cause you to spend more than you can afford on things that don’t improve your educational experience — then ask whether the risks of deliberately and strategically withdrawing from (not losing) accreditation outweigh the benefits. The ABA has been talking about switching to output measures in accreditation for years now, and we shouldn’t expect any progress for more years to come. You might not want to wait that long.

These are five places where a law school can begin the process of exploiting its own vulnerabilities and reinventing its own model. Whether and to what extent these are practical for any given law school will depend on its specific circumstances. I can only say this: the traditional law school model simply doesn’t serve the legal market anymore. Whether it’s new entrants or familiar incumbents, someone is going to replace it with something better — and soon.

Jordan Furlong delivers dynamic and thought-provoking presentations to law firms and legal organizations throughout North America on how to survive and profit from the extraordinary changes underway in the legal services marketplace. He is a partner with Edge International and a senior consultant with Stem Legal Web Enterprises.



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