Disrupting the legal education marketplace

Are you old enough to remember when the only way you could send a letter or a package to someone in another city was through the Post Office? Do you remember what it was like to deal with the employees and policies of a company that had a complete monopoly on a vital service? Remember how much you enjoyed that?

Are you also old enough to remember when the only way you could phone someone in another area code was through long-distance services provided by your local telephone monopoly or duopoly? And how you had to wait and call after 6 pm to get a discounted rate, or after midnight for an even steeper discount? How did that work for you?

It’s easy to forget how much technology and globalization have changed and improved our everyday experiences in the last few decades. Today, we take companies like Fedex and Skype for granted. We have trouble picturing a world — a very recent world — in which there was no Ikea, no Amazon, no Samsung, no Starbucks, no SouthWest. You don’t have to use these companies or like their products to recognize that their arrivals changed the markets they entered, created more choice, forced the incumbents to lower their prices or raise their games or change their offerings or all three. And I can presume that you wouldn’t go back to those old, narrow, barren markets unless forced at gunpoint.

Now, take that frustrating, constraining, 1970s-malaise feeling you recall from the old days, and apply it to legal services. Because that’s the way many people and businesses still experience the legal market: one type of provider, one set of rules and procedures, one definition of adequate service. But that’s all about to change:  our cozy little market is opening up, and new players are entering.

These new players, like the Ikeas and Southwests that entered other markets before them, will undermine clients’ existing assumptions about how legal products and services should be created, priced and delivered, and they will find many willing customers desperate for a breath of fresh air. This isn’t really negotiable or reversible. All that’s left for us to decide, as lawyers, is whether we want to wind up as the future equivalent of the Post Office in a FedEx world.

Now, here’s the better news for lawyers: there’s a growing chance that we could experience the same kinds of consumer benefits arising from the opening and expansion of another dusty, moribund market: legal education.

As you know, for all practical purposes, there is one and only one route into the legal profession: a law school degree and a Bar-administered admission process. The degree goes by different names (e.g., Bachelor of Laws, Juris Doctor) and so does the admission process (e.g., articling, Bar exam, solicitor training, Bar admission course). But the basic structure is universal and hasn’t changed for decades: three years of law school followed by a competence assessment that, in most (but not all) cases, is not especially difficult to pass.

The practicing Bar’s unhappiness with the legal education system has been thoroughly documented. But the Bar also has no one to blame but itself. By allowing a law degree to stand as the exclusive means of legal education credentialing, the legal profession has also created a monopoly that works against its own interests. If you want to become a lawyer, you must first go to law school. Legal educators, gifted with sole possession of an extremely lucrative and perennially increasing market, have responded exactly as you would expect any monopolist to respond: jacking up prices, fending off change, and ensuring their own nests are comfortably lined. (Before you start feeling too resentful about that, go back and read the fourth paragraph again.)

Law schools, of course, are currently in the process of watching their pleasure domes start to crack and crumble. Thanks in large part to recessionary forces and changes to the way law firms hire and use associates, US lawyer employment has imploded, and law schools are paying the price. You could argue — I won’t, at least not strenuously — that this is unfair to the schools: they didn’t cause the changes to the market, and if anything, they’re doing a slightly better job preparing students for practice today than they did 10 and 20 years ago. Not that that will help them now — there’s an old saying that when you sow the wind, you reap the tornado.

Anyway, the most recent US law school data is remarkably grim: as you’ve probably read, applications to ABA-accredited law schools are down 20% from 2012 and are on track to nosedive 38% since 2010. If you go back to 2004, the drop is an astonishing 50%. This has hit the legal academy like a hand grenade tossed through a window: Paul Campos has been tracking the resulting panic and shrapnel for several months now.

The problem has become large and serious enough to have caught the attention of the mainstream press: The New York Times, The Atlantic, Forbes and The Daily Beast have all picked up the story, coverage that is just going to accelerate the race away from law school enrolment. I issued a “sell” advisory on law schools 20 months ago, and nothing that’s happened since has changed my mind. (Smart schools still interested in saving themselves should read Bill Henderson’s Blueprint, today.)

That, obviously, is the bad news. The good news is that this market disruption, like every other, can create opportunities for new players and new models. Here are a couple that you should note and encourage.

In England & Wales, now widely recognized as the world’s legal laboratory, apprenticeship is poised to make a comeback in the professions. “At the moment, to become qualified as a solicitor, accountant or in insurance, the typical route involves three years at university, then on-the-job training and professional qualifications,” wrote Skills Minister Matthew Hancock in the Telegraph. “But university is not for everyone. There is no reason why you can’t attain the same qualifications, without the degree, starting on-the-job training in an apprenticeship from day one. So I want apprenticeships spanning craft, technical and professional jobs that open up work-based routes to the top.” The minister cited approvingly an apprenticeship program under development at BPP Law School, which has close ties to the profession.

Now, if you’ve been reading my work for a while, you’ll know that I think highly of apprenticeship, and that I wrote a few years ago about some promising apprenticeship programs at a handful of US law firms. (Here’s the paper I submitted to a Georgetown Law symposium on the subject.)  I imagined and hoped that this was a trend that would take off in a recessionary climate; it did not. But that was apprenticeship as a training method for new lawyers; we’re now talking about apprenticeship as a non-school route into the profession.

Hardly anyone takes that path anymore; but if it could be revived, ideally complemented with a mini-degree that provided grounding in the essentials of jurisprudence and legal theory, then law schools would have more on their hands than just a PR nightmare and a shrinking inventory: they would have competition. And unlike those first two factors, which will spawn only destructive outcomes, competition can and should be constructive for schools. Competing models that threaten to siphon off the best applicants would spur schools to make real changes in their approach to the market — it would give them a target to focus on and a framework within which to reconfigure and rebuild.

Nobody wants law schools to disappear; we want law schools to thrive — but on their merits. Putting a viable alternative up against law schools would motivate them to reconsider their own models, defend their own visions of lawyer preparation, or adapt their approaches to more closely resemble what the successful options offer. Complaining about law schools didn’t work; trying to regulate them won’t work; and putting them out of business is pointless. So give them competition: unleash alternatives that can give them a run for their money, and let them fight their way out of this mess.

A similar sort of innovation may be unfolding here in Canada, which it seems fair to say is not widely recognized as the world’s legal laboratory. But the Law Society of Upper Canada in Ontario has recently done something which could be just as bold, in its own way, as the UK’s move towards apprenticeship.

Law graduates cannot be admitted to the Bar in Canada until they’ve completed a year of articling — itself a form of apprenticeship with a practicing lawyer or law firm. More than a few US commentators have envied this approach and suggested its adoption in the US (or the British solicitor trainee program or German Referendarzeit). But articling in Canada is itself the subject of ongoing controversy, and in Ontario, articling placement — which used to be all but automatic — is now down to about 85%. That’s a problem that the US bar, facing a 55% new-lawyer law-related employment rate, would love to have.

In Ontario, however, concern about the articling crisis led to heated debates and finally, late last year, to the approval of a pilot-project Law Practice Program that would run parallel to articling and provide an avenue to those who cannot land articling positions. The program is not, shall we say, universally popular, and at this extremely early stage, it’s almost entirely speculative anyway. But I think it’s tremendously important nonetheless, for much the same reason as I think the possibility of apprenticeship is important: it creates competition for new lawyer training.

Up until now, articling in Canada has, in a sense, enjoyed a monopoly, in much the same way that law schools and lawyers have. There is only one “apprenticeship” method, one training route, for Canadian bar admission, and that’s the articling process. Knowing this, many Canadian law firms have felt free to offer articling positions without having to worry very much, if at all, about the quality of those positions. All they really had to concern themselves with was the provision of a competitive salary; it was accepted wisdom among lawyers and law graduates alike that the articling experience itself would always be uneven, and that whether you really learned much about being a lawyer would be partly a matter of your own efforts and partly the luck of the draw.

Now, introduce the Law Practice Program into this mix. Suddenly, articling programs can’t afford to be complacent, because now there’s another training option. Providers of the Law Practice Program (it’s envisioned that there would be several) can pitch themselves to the law student market thus: “Law firms won’t really train you to be lawyers, you know. They’ll have you photocopying and doing grunt work and picking up drycleaning. But we will train you, through competitive work placements and practical role-play sessions and other cutting-edge methods for inculcating business skills. We will give you the tools to be employable upon graduation.”

These providers will have to offer and deliver these kinds of benefits, because that’s the only way they’ll be able to make money. In order to attract candidates — and, much more importantly, to produce graduates attractive to employers — they will need to build a training program superior to articling (and based on some reported articling experiences, that might not be terribly difficult). They will have to do more than just be a consolation pathway for students who couldn’t find articles — they’ll have to persuade law graduates of all stripes that their programs are as good as or better than articling and are worth the investment.

And if they succeed — well, then suddenly, we have a race. New lawyer training stops revolving around the tired old question of “Whose responsibility is it?” that we’ve been grappling with for ages. It becomes a question of “Who wants the opportunity?” Which training option is better for new law grads? Which can deliver the best results? Which can draw the best students into their programs and produce the best subsequent employment rates? A market filled with new lawyer training options, competing with each other to attract law graduates into their program, would have many ramifications — the likely end of standard paid training for new lawyers almost certainly among them — but the overall impact on the profession would be highly positive.

That’s why I think the Law Practice Program for the Ontario legal profession has the potential to be a game-changer, and why the suggestion of an apprenticeship route into the British profession is equally significant. Our legal education and admission methods have grown stagnant because they are monopolies, no different from the post office or phone companies of the past. Break up those monopolies — open up these markets and let in some sunshine and fresh air — and you’ll have the first real opportunity for serious reform and improvement in the new lawyer development process.

And if it all breaks right, then just like with mail and long-distance calls, no one will want to go back to the old days again.

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. 

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.

Walking away from a losing game

And suddenly, everyone’s talking about Procurement. Not that long ago, warning lawyers about the rise of the corporate purchasing function was a little like a medieval parent telling their children about the goblin who lived under the floorboards: you’d better behave, or he’ll come and eat you up. Now the goblin is loose: Procurement’s importance in the purchase of outside legal services, which has been slowly and quietly growing over the past few years, is exploding into view.

Silvia Hodges writes at Bloomberg Law about Procurement’s growing role in Legal, Ari Kaplan provides procurement examples at Law Technology News, and Toby Brown at 3 Geeks gives us three separate columns on the intersection of procurement and legal spend and the implications thereof. You should take the time to read all of these entries, but I think the authors’ overall point is that

(a) Procurement is here to stay,
(b) Procurement’s traditional approach to purchasing is a questionable fit with best practices for legal spend, and
(c) the ideal outcome would be for procurement representatives, the in-house department and the outside law firm to work together towards arrangements that try to serve everyone’s interests.

I’m not confident that (c) is a likely outcome, given each party’s dramatically divergent self-interests, but it’s certainly worth a shot.

What interests me more about the rise of Procurement, however, is how it illustrates a broader trend throughout the legal community: our tendency to let third parties set the rules by which we operate. Procurement at least has a good argument for being at the table: it’s an important aspect of the corporate client that pays the bills. But I’m talking more generally about lawyers ceding control over our own business and professional destinies — our ongoing acquiescence to more aggressive players who have set the standards by which we judge ourselves. The two highest-profile examples, interestingly, are magazines.

For lawyers in large US firms, of course, it’s The American Lawyer. I don’t need to tell you that AmLaw is an excellent periodical, among the very best in class. But the AmLaw 100 rankings are a remarkable thing. A magazine chooses a single metric (average profits per partner) by which to assess large law firms and invites those firms to submit annual financial information so that the magazine can judge them on that metric. And the law firms do exactly that. Has that ever struck you, at any point, as, well, a little odd?

The AmLaw 100 (and 200) rankings, and their progeny in other publications, have arguably done a great disservice to law firms’ own sense of identity and success. Average profits per partner is a flawed metric in many ways (not least mathematically — even median PPP would be a more accurate gauge of a firm’s financial situation, since outliers don’t skew the result so much). It’s especially flawed because it regards annual profit for individual owners as a direct proxy for the health, success and prestige of a law firm. Recent history nicely illustrates the problem with that — Dewey & LeBoeuf was profitable and prestigious until shortly before it crashed.

We already know that good law firms provide more than just partner profits. They also deliver enterprise-wide productivity, a satisfying vocation for employees, a positive corporate social footprint, and above all, value for clients specifically and the legal system generally. Those features aren’t as easy to measure as PPP (especially when the firms conveniently supply all the figures), but they’re no less important. The pernicious modern belief that “The purpose of a business is to create wealth for its owners” was never all that accurate even for ordinary businesses. Law firms are not ordinary businesses — they’re fiduciary professional businesses that operate in a very favourably regulated environment, and they require both responsible management and responsible measurement.

You can probably guess, at this point, that I’m no big fan of PPP rankings. But as much as this approach to measuring law firm success alarms me, I’m more alarmed by the degree to which law firms have surrendered to it. Large US law firms routinely make important decisions about partner recruitment, associate development, legal service pricing and a host of other issues based upon whether the outcome will affect their PPP.

The spectre of a precipitous dive down the AmLaw rankings, and the legitimate fear of the subsequent loss of key partners to firms higher up the list, drives any number of short-term tactical moves by law firms. Some of these moves are sensible; many others aren’t. But the point is that we’ve allowed someone else to set the criteria that drive these decisions. We judge our success on their terms, rather than setting our own standards and taking our destiny into our own hands.

Similarly, take a look at law schools and the degree to which they’re beholden to magazine-based rankings. The US News & World Report — a publication I once referred to as the RC Cola of weekly news periodicals — is infamous for the influence it wields over American law schools. A publication — this one without any actual connection to the legal profession — adopts a series of criteria that it considers important and uses those criteria to rank the schools.

These rankings and their criteria subsequently become vitally important to the schools, which start making decisions — about applicant admission, student classification, faculty hiring, even the number of books in their libraries — not on what’s best for the school and its community, but on what will help them move up the rankings. In many cases, as Brian Tamanaha notes, these decisions have driven behaviour that was not only unwise, but also flat-out dishonest.

In-house counsel now face, with Procurement, a similar phenomenon. Just as the AmLaw rankings care about a single metric (partner profit), procurement officials tend to care about a single outcome: lower expenditures. If that becomes the sole focus of in-house law departments, then it will drive very different types of internal behaviour by Legal — some of it good, some of it not; but all of it determined by someone other than the lawyers involved.

I want to emphasize here that Procurement is not a villain, and neither is US News nor The American Lawyer. These are corporate entities making business decisions that happen to involve or affect the legal profession, and they have every right to do so. The problem, from my point of view, is that lawyers and legal enterprises haven’t responded strongly enough to advance our own priorities in turn. We’ve allowed ourselves to be drawn into games in which we didn’t write the rules, in which those rules don’t serve our best interests, and in which other players’ moves dictate our own. Is that really the best we can do? Are we so insecure that we’re content to be the raw material for other people’s platforms?

Maybe so. But I would hate to think that we went down that road on anyone’s terms but our own. If we allow other people’s criteria for success to become our own, and then blame those criteria when we engage in highly questionable behaviour, then we have an existential problem. But we’re powerless only if we decide to be. We can decide for ourselves what behaviour is important to our mission and values. We can assert broader and better criteria for success, and transparently self-publish them. We can make it perfectly clear, both internally and externally, what matters to us, and then let the world judge us on those choices, not on someone else’s.

The only way to win a game in which you’re set up to lose is not to play. The only way to gain control over your own destiny is to ignore anyone outside your core constituencies who asserts otherwise. There are exactly two constituencies that law firms have to please: the clients who buy their work and the lawyers who are paid to produce it. There are exactly two constituencies that law schools have to please: the profession that hires their graduates and the students who pay to graduate.

Law firms’ and law schools’ conversations about strategy and destiny need to start with those constituencies, and they should end there, too. Everything else, no matter how popular or pervasive, is ultimately just a sideshow and a distraction.

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.


Law school revolution

One of my favourite bumper stickers, back when such things were popular, read as follows: “Where are we going? And what’s with this handbasket?” If you’re involved in any aspect of legal education these days, or if you have even a passing interest in how law schools are doing their job, you might feel that bumper sticker is especially appropriate.

Law schools and legal education are in an uproar. There’s a host of factors at work, most notably an extreme and rapid change in how legal work is done and who is required to do it — a trend that’s making things difficult for law firms but that’s positively brutalizing law schools. There’s plenty of upheaval going on in legal education and admission in Canada, in the United Kingdom, and in Australia, but I’ll focus this post on the US, where the worst of the storm is centered. Here are some highlights:

As you might gather from all of that, law schools in the US are feeling tremendous pressure from would-be, current and former students — the three groups that control almost all of their funding and reputation. Much more so than law firms, law schools are extraordinarily conservative and change-resistant places, yet they’re now grappling with the same forces transforming the wider legal marketplace and have fewer resources with which to cope.

The fact also remains that despite these troubles, a great many law schools, administrators and faculty members remain serenely unaware of or unmoved by these developments. Law schools are, in the context of other professional schools and legal entities anyway, stable and profitable institutions whose personnel are remarkably resistant to what few demands for change are presented to them. Law schools have never had a superb reputation within the practicing bar — too many lawyers remember their desperate attempts to figure out their new profession even after three years of “education” — but the bitterness towards and condemnation of law schools by lawyers has never been this strong and this sustained.

I’ve had plenty to say on the subject of law school myself over the past few years, little of it heart-warming. But the fact is, amid all the noise and vitriol around this subject, quiet success stories are being written. If we spread our contempt for the current system’s failings too widely and indiscriminately, we risk missing out on the fact that right now, the very revolution we wish would break out is starting to unfold in front of us.

I want to bring your attention to an array of initiatives, innovations, and courageous pioneering efforts that could, if they catch on and receive the support they need, usher in a new era of legal education. In the areas of technology, informatics, apprenticeship, online learning and structural innovation, the future is already starting to arrive.


Last term, Georgetown University Law Center in Washington, DC, offered a new experiential seminar called “Technology, Innovation and Legal Practice” that explored how the first two elements can transform the third. Student teams were required to develop applications that either increased access to the legal system or made legal practice more efficient. The results were on display in the school’s “Iron Tech Lawyer Competition,” as described in this PBS news video. Here are two of the projects, one on citizenship acquisition and the other on same-sex marriage legality; all the projects were powered by Neota Logic, a legal tech pioneer that I profiled last year.

At the mobile end of the technology spectrum is another innovative program, Apps For Justice, spearheaded by Ron Staudt at the University of Chicago-Kent Law School (home of legal access software A2J Author) and Marc Lauritsen of Capstone Practice Systems, among others. Apps for Justice, as Marc explains in this six-minute video at Ignite Law 2011, enables law students to create software applications like document templates, guided interviews, dynamic checklists and interactive advisers. These apps perform useful legal work, from helping lawyers work smarter to helping clients resolve their own problems and opportunities. Apps For Justice won the 2011 Future Ed competition sponsored by New York and Harvard Law Schools.


Related to but a breed apart from legal technology lies the field of legal informatics, which Wikipedia helpfully defines as the study of the structure and properties of legal information, as well as the application of technology to its organization, storage, retrieval, and dissemination — data crunching in the law, if you like. William Henderson of the University of Indiana-Bloomington Maurer Law School, who also writes urgently and incisively about crises in legal education and large law firms, was the first law professor I found paying attention to the study of data in the law school context (which he continues to do with his company Lawyer Metrics). Stanford Law School’s CodeX initiative is also worth attention in this regard.

This envelope is really getting pushed, however, at Michigan State University Law School, where professors Daniel Katz and Renee Knake are engaged in some of the most avant-garde work in legal education I’ve seen in a while. It includes the Computational Legal Studies program, which features courses in Quantitative Methods for Lawyers and Entrepreneurial Lawyering, as well as presentations with titles like “Quantitative Legal Prediction” and “The MIT School of Law.” There’s also an upcoming legal laboratory called Reinvent Law. In addition, MSU Law has launched the 21st Century Law Practice Program, which this summer features LawTechCamp London, in association with the University of Westminster Law School, presenting courses like “Legal Information Engineering and Technology” and “The Legal Services Act and UK Deregulation.”


Long-time readers will remember my articles about apprenticeships at law firms (PDF) and the potential I see for law schools to step into this arena. The pioneer in this regard, of course, is Washington & Lee Law School in Virginia, which ripped out its traditional third year and installed an entirely experiential curriculum “comprised of law practice simulations, real-client experiences, the development of professionalism, and development of law practice skills.” The program, which involves a broad range of clinics and externships, continues to thrive. Experiential legal education has since been embraced widely, including at Northeastern University Law School. (And it’s not only law firms that can benefit: corporate law departments are the subject of similar programs at the University of Chicago Law School and Columbia Law School.)

Now, here comes the next phase of apprenticeship, one I’ve been eagerly awaiting. Arizona State University Law School, running with an idea first proposed by law professors Brad Borden and Robert J. Rhee, is creating a “teaching law firm,” a kind of residency for lawyers that resembles teaching hospitals at many universities. Upwards of five experienced attorneys would act as “partners” to supervise 15 to 30 “resident lawyers,” recent ASU grads who would spend up to two years providing bankruptcy, family and corporate law services to middle- and lower-income clients. Above The Law, as harsh a critic of law schools as you’ll find these days, thinks it’s a great idea; I think it’s potentially a game-changer. (See also the small but growing number of law school “solo incubators.”)

Online Learning

If ASU Law’s “teaching law firm” is a game-changer for law schools, then coming up on the horizon is a development that could be vastly more influential and devastating to the traditional law school model. Online education is in the early stages of changing everything we assume and believe about learning, led by the Khan Academy and countless fellow travelers. This article in The Atlantic relays a telling account by Harvard professor Clayton Christensen of his first, eye-opening experience with online classes.

To get a sense of what distance learning could mean to legal education, read this New Yorker article about Stanford University, in particular the final page about Stanford’s recent experiments with online learning (and watch this TED video, wherein one of the professors talks about teaching a class with 100,000 students). A law school course with 100,000 students? Why not? Someday soon, some law school is going to invest seriously in online learning, and will turn their industry upside down in the process. (The private sector is already several steps ahead on this one: witness Solo Practice University, which is doing in this area exactly what law schools could and should have done years ago.)


Then there are the pure innovation engines within law schools, driving full-scale change not just in their own institutions but industry-wide. Law Without Walls, as this ABA Journal article reports, is “a collaborative academic model that brings together students and faculty from 11 international law schools and one business school, law practitioners, business professionals, entrepreneurs and venture capitalists to develop innovative solutions to problems facing law school and practice.” LWOW’s participating schools (it’s based at the University of Miami Faculty of Law) hail from the US, England, Australia, China, Spain and Colombia. The initiative’s third annual ConPosium is set for next April; check out the extraordinary Projects of Worth that the 2012 version created.

Further west, you’ll find the Institute for the Advancement of the American Legal System, a standalone institution at the University of Denver, and in particular the IAALS’s Educating Tomorrow’s Lawyers initiative. ETL’s mission is “to encourage and facilitate innovation in legal education” in line with the Carnegie Model of legal ed reform, in pursuit of which it researches and designs innovative teaching methods to share with other law schools and showcases those school’s own innovations. (Here’s my own curriculum wish list, if you’re interested.) More than 20 US law schools are part of the ETL’s Consortium. Denver Sturm College of Law is also home to other innovations, including the transformation of the standard first-year legal writing course into a Lawyering Process Program.

The IAALS, by the way, describes itself as “a national, independent research center dedicated to continuous improvement of the process and culture of the civil justice system.” In that respect, it shares much in common with a growing number of research and innovation Centers at various law schools, devoted to improving both the legal education system and the legal services industry domestically and globally. These programs can be found at Georgetown Law, Indiana-Bloomington Law, Stanford Law and Harvard Law.

That’s more information about legal education reform, and more links to a wealth of rich content, than you can get through at one sitting, yet there are still law school initiatives and innovations that I haven’t touched on here. (If I’ve overlooked one that we should know about, please detail it in the comments.) I’ve provided you with all this data for two main reasons:

1. I want to increase your awareness and appreciation of what some legal educators are doing, their recognition that the present model is unsustainable and their commitment to trying something new to make the system work better for all concerned. Not every law school is clueless or manipulative, and it’s a disservice to lump the reformers together with the reactionaries.

2. I also want to encourage you to get involved with these initiatives at the law school or with the organization closest to you. I’m a volunteer with Law Without Walls and I’m speaking at an Educating Tomorrow’s Lawyers event in Denver in October, and I’m actively speaking with law deans about innovations in their own schools. The more the profession gets involved, the better the chance these projects will succeed.

You say you want a revolution? There’s one starting up right now. Grab your bullhorn.

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.

Learning to run

There’s an old expression among professional sports coaches: “You can’t teach speed.” It’s usually meant to indicate that there are things you can train athletes to do well (skills) and things that are simply God-given (raw talent), and it encourages the traditional view that talent is more valuable.

I’ve come to believe differently. In most markets, athletic and otherwise, there’s no shortage of talent: the physical and mental attributes of today’s new recruits surpass what most members of previous generations could boast. What’s missing, in many cases, are the skills, the knowledge of how to deploy those talents to maximum effect as a performer. Almost every good athlete coming out of high school and college can run fast; relatively few, however, learn to run well.

These thoughts came to me while reading (and commenting upon) an excellent post by UK law professor John Flood, in which he laments the complete disconnect between the legal education system and the rapidly evolving profession into which that system’s graduates will be deposited. If you asked your average law school professor to identify names like Axiom, Acculaw, Lawyers On Demand or any leading LPO, as John suggests, they wouldn’t know what you were talking about.

Law schools are so far behind the legal market’s evolutionary curve (and apparently so uninterested in catching up) that they seem extremely unlikely to lead conversations towards a better legal education and training system. But if so, where do we start fresh? I’d like to suggest that we begin by re-examining some fundamental assumptions about “talent” versus “skills” in the legal profession.

Virtually everyone in law school and the legal profession today has talent: some combination of raw intelligence, analytical and logical adeptness, and/or communication ability. That’s primarily thanks to the undergraduate education systems that produced these lawyers, the Law School Admissions Test that judges them, and the law school admission personnel who value these criteria head and shoulders above any others.

So the talent is there. Virtually everyone who’s in or preparing to enter the legal profession has speed. But not everyone in the legal profession can run well. And the newer you are, the more this is true. It’s almost universally the case for law students and new lawyers, in fact, who have received almost no training to help turn their talents into skills with which they can serve clients and make a living. (And I don’t just mean “practice” training; the tools with which you become a great lawyer include a really solid grounding in jurisprudence, legal history, and ethical philosophy, and not many law degrees can say they deliver that.)

Law schools haven’t been much help in this regard; but in fairness, it really wouldn’t have made much difference even had they spent the last 20 years teaching students “how to be lawyers.” That’s because the market for which those fantasy schools would have been preparing students is quickly disappearing. Nobody (not least me) can say with certainty what law practice in 2026 will look like, but it seems a pretty safe bet that it’s not going to look remotely like it did in 1996. Just as well, then, that we have mostly raw talent that doesn’t need to unlearn old habits before acquiring new ones.

But we still need someone to lead the way in the new skills-acquisition process for the legal profession — and that leads me to think there’s a huge market opportunity, right now, for a legal skills training company geared towards early 21st-century law practice. Never mind preparing students for Skadden or Linklaters; prepare them for Axiom, Lawyers On Demand, Clearspire, Quality Solicitors, Eversheds Legal, and similar operations that look like they’ll be offering an increasing percentage of legal jobs over the next couple of decades.

But — and this is important — we need to skill lawyers up, not down. We don’t want to be developing data entry clerks or automated-contract proofreaders here, and tomorrow’s best legal employers won’t be hiring those people. We need to train new lawyers in leadership, problem solving, project management, cultural fluency, emotional intelligence, technology, entrepreneurship, and other traits that have a decent shot at being the skills future lawyers will need. Give them the tools with which they can harness their talent and take it into any high-value or socially meaningful career, whether it involves the sale of legal services or not.

Law schools, as mentioned, might as well not be in this discussion. I don’t have a great deal of confidence in the practicing bar, either, especially given CLE administrators’ continued fondness for offering legal updates and calling it “professional development.” These are yesterday’s approaches; we need to find tomorrow’s. Solo Practice University remains a powerful model for this sort of innovation; we need more organizations interested in training lawyers to be gainfully and usefully engaged as lawyers in the decades to come. We need far greater use of true, supervised, mentor-based apprenticeship, because “doing” has a multiplier effect on “training.”

What we need, essentially, is a new breed of coaches who can deliver future-oriented professional development. There is no lack of opportunity awaiting them. There are thousands upon thousands of lawyers out there who can run fast but aren’t getting anywhere. They need someone to teach them how to run well.

The decline and fall of law school

As every frustrated customer knows, there comes a time when you stop trying to negotiate with a stubborn supplier and start looking for alternatives. I think that time is just about here for the legal profession in its relationship with law schools.

If you’ve been reading this blog for awhile, you probably already know that my general opinion of law school is a fairly jaundiced one (if not, those links sum up my feelings pretty well). To their credit, some legal educators and administrators have recognized the serious if not fundamental problems with the current model and are trying to tackle it. In particular, you should be aware of:

But these are the happy exceptions, and the general rule against which they’re struggling is widely followed and deeply entrenched. For the most part, law schools are legal research and publishing platforms that finance their activities by granting law degrees, enabling aspiring lawyers to join a practicing bar that generously allows the schools to conduct the first three years of new lawyer training. The price of a law degree has risen steadily for almost 20 years; arguably, the value of that degree has stagnated or fallen throughout that time.

This state of affairs has bred an inefficient and sub-standard approach to legal education and new lawyer training, culminating in the crisis of confidence now apparent in the law school-legal profession relationship. Lawyers have been grumbling for years about law school, but they’ve never done more than complain. That’s about to change, because the facts on the ground have become impossible to ignore.

Stable careers are long gone and contract work is becoming the norm for many, even at the training level. Education, it seems, is transforming into training without the benefits that true education can bring. More and more the employers, as in the case of KPMG, are taking charge of selection, leaving the academy as a mere processing plant. And an expensive one at that. The current model of legal education is unsustainable in its present form. It can’t make up its mind as to whether it is education or training for jobs, or worse, some cackhanded attempt at both. This failing besets legal education in both the US and the UK and others too. Legal education is a perverse mix of cheap delivery and expensive consumption.

What’s really remarkable about this is that most law schools are (or pretend to be) completely unaware of the gathering storm. They continue to value faculty scholarship more highly than the classroom experience or students’ career paths. This calculation that the average law review article costs about $100,000 isn’t as shocking as this additional revelation:

“… 43% of law review articles are never cited by anyone. ‘At least a third of these things have no value…. Who is paying for that? Students who will graduate with six figures of debt.'”

What role, precisely, do law schools serve? They’re not really trade schools — they don’t take career preparation or placement very seriously — and they’re not really graduate schools — the law degree, as I’ve argued before, is a glorified undergraduate program. Their value to the legal marketplace resides in a few magic letters — J.D. or LL.B. — and they seem to be daring the profession to find alternative providers of this three-year credentialing service. I’m not sure why they’d take that risk. Most schools are heavily reliant upon law firms’ continued willingness to hire enough new graduates (often with high salaries and bonuses) to justify those schools’ tuition — at a time when the bible of large law firms, The American Lawyer, has flatly referred to those outlays as “a waste of money.”

Law schools that value their continued involvement in the legal education industry need to understand just how dangerous their position has become. The lawyers and legal regulators to whom I speak sound close to giving up on law schools, writing them off as partners or even stakeholders in the bar admission reform process. These people are the schools’ customers — the annual buyers of their inventory — and they’re despairing of any movement by the schools towards a different approach or even a real conversation with the profession about its needs. There just doesn’t appear to be anyone home.

John Flood writes: “The academy has the present advantage of providing the only route into the legal profession, or what’s left of it. I imagine it won’t retain that monopoly.” I think he’s right. The bar needs better options for the education, training and admission of new lawyers, and it is a motivated buyer. Next week, I’ll look at the whole question of new lawyer admission in some more detail and at the early signs of some new entrants to this market.

If you work in a law school, I’d suggest you track these developments closely. Because schools are poised to become something far worse than simply an irritant to the profession. They’re poised to become irrelevant.

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.


Law schools and the law of supply and demand

If law schools were publicly traded companies and you held some in your portfolio, I would be strongly advising you to sell. Fast.

Here’s a quick review of some recent news concerning the US legal education industry and the legal profession it is purportedly preparing its graduates to enter.

I don’t know about you, but I look at these and similar accounts and I see a bubble just waiting to pop, or a system on the verge of a crash. This isn’t about the recession or the financial crisis anymore; this is about a serious misalignment between the industry that trains new lawyers and the marketplace that employs them. (Canada, by the way, is headed merrily in the other direction, with three new law schools set to open shortly; whether this is a sprint towards a cliff is a subject for another day.)

What we’re seeing here is the law of supply and demand applied to the law. The future legal marketplace is going to require fewer, differently skilled lawyers than it has during the past several decades, so this market recalibration should really come as no surprise. The market is telling law schools: we don’t need all these new lawyers, and we definitely don’t need the skill sets you’re giving them. Law schools aren’t listening, because they can’t: the production of traditionally credentialed graduates has become the reason for their existence and the core of their business model. Companies whose products are no longer in demand either find new products or go out of business. I see extremely few law schools capable of changing their product lines.

That’s one side of the coin. Here’s the other: shrinking demand for lawyers is not the same thing as shrinking demand for legal services. If anything, the overall legal services market seems poised for strong growth over the next decade or so. This isn’t only because an increasingly global, complicated and cross-connected world will have an equally increasing need for legal help to navigate it successfully. It’s also for two other reasons:

  • Many legal tasks that no longer justify the expertise of a lawyer to do them must still be accomplished, but at better-aligned prices.
  • The latent legal market, left untapped by generations of lawyers and law firms, is ready to explode, as the DIY law trend illustrates.

This is real demand, and it can be met by low-cost lawyers, foreign lawyers, quasi-lawyers, para-professionals, corporate providers, and automated systems. At the moment, there is a relatively limited supply of these entities. But just as the changing market is punishing old suppliers like law schools, it will reward new suppliers such as virtual law firms, legal process outsourcing companies, freelance and contract lawyer organizations, e-discovery specialists, automated document assembly programs, consumer-friendly legal kiosks and outlets, and many other options still at the embryonic stage. These are the directions in which the investment funds triggered by the Legal Services Act will flow, not (for the most part) into law firms and most certainly not into law schools.

Historically, demand for legal services has meant demand for lawyers, and the legal education industry evolved to reflect that. In future, demand for legal services will be met by a greater diversity of providers with different training and new skills, crossing previously sacrosanct lines of status, geography and even technology. That’s what’s really going on here: an old supply chain is breaking down, and a series of new ones are rising to replace it. Place your bets accordingly.

Jordan Furlong speaks 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.

Law as an undergraduate degree

The start of the school year is upon us. You can tell from the firestorm of written commentary in the legal press and blawgosphere about the function, fitness and future of legal education.

Fanning the flames hardest is Brent Evan Newton, an adjunct professor at the Georgetown University Law Center, who has written an article with a title that (almost literally) says it all: “Preaching What They Don’t Practice: Why Law Faculties’ Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy.” Newton’s piece does not, how you say, adhere to the traditional measured tones of academic discourse. Some excerpts, courtesy of the ABA Journal:

These “impractical professors whose chief mission is to produce theoretical legal scholarship” feel indifferent towards—and sometimes outright disdain for—practicing lawyers and faculty members with a practical bent, he writes…. “Especially at law schools in the upper echelons of the U.S. News & World Report rankings, the core of the faculties seem indifferent or even hostile to the concept of law school as a professional school with the primary mission of producing competent practitioners.

But Newton’s article is just gasoline poured over an already robust conflagration. Here’s what else the last two months have produced:

  • The New York Times revealed in June that several US law schools have retroactively inflated their students’ grades, ostensibly to “help these students find work in a difficult economy,” but perhaps equally if not more so to protect their own rankings and reputation. (Personally, it’s not clear to me how a school’s reputation is enhanced by pumping up grades the way a third-rate used-car dealership rolls back odometers.)
  • The University of Michigan’s law school has started including job offers from Indian legal process outsourcing companies on its career page. Fairly or not, Above The Law does kind of capture the zeitgeist of this one: “If you go to a top ten law school and end up having to go to India to find work, your law school … should forgive all your debts and furnish you with a public apology.”
  • While demonstrating the absurdity of the US News law school rankings — Stanford could have perfect admissions standards and still not attain the #1 ranking unless it spent another $350 million on salaries and textbooks — University of Indiana law professor William Henderson delivers a hard truth: “I don’t think even one law school in the US News Tier 1 has reached even 10% of its potential to educate and solve problems.  Too many one-professor silos.  Too much ego.”

These are the signs of a legal education system in the process of breaking down, a subject I canvassed in a recent column for The Lawyers Weekly newspaper: “Law school and the risk of irrelevance.” That column in turn prompted a dynamic discussion of the subject at Legal OnRamp started by Stephanie West Allen, who posed the key question facing those of us with an interest in the future of the profession: “What is the role of law school?” Many insightful comments followed, but I was especially struck by an excellent observation by Michael Stern, a partner at Cooley Godward:

Law school is the worst of both worlds–a lousy trade school and a lousy graduate school. Law school does not prepare practitioners to practice, and lacks intellectual rigor (it’s remarkable that a discipline founded on the interpretation of texts pays virtually no formal attention to hermeneutics and only outsiders like Stanley Fish, with his background as an English professor, ever write about “theory”; few law schools offer any courses providing any historical or sociological context for the evolving role of common law in capitalist society). Three years of reading cases is the equivalent of spending three years in an English Ph.D. program doing nothing more than reading random sonnets as ahistorically as a new critic might have done in the 1950s. And the idea that graduate students are the gatekeepers for the field’s professional journals is really nuts–proof of the vacuity of most legal “scholarship.”

This is an important point. When we criticize law schools for failing to teach practical skills, we’re essentially criticizing horses for not giving milk — it’s not what they’re set up to do. Absolutely, there ought to be practice and business training for new lawyers, but it’s pretty clear at this point that the schools aren’t going to provide it. So we might as well take the stool away from underneath the horse and go look for fresh pastures, so to speak — novel and better ways for lawyers (new and not-so-new) to learn skills that serve clients (I recommend Solo Practice University in this regard, by the way).

But when we say that law schools don’t teach practice, we unconsciously assume that what they do teach is theory — and I think Michael’s observation is correct, that that isn’t actually what most of them teach at all. Law schools do provide a grounding in jurisprudence and some legal theory, but that’s mostly in first year — from then on, it’s Basics of Tax and Intro to Family Law and Criminal Procedure 101 and so forth. This isn’t theory. When you take a class in Evidence, you’re not learning the philosophical underpinnings of what can and can’t be proved. You’re learning about the very real rules of evidence that are applied in real courtrooms to real people with real consequences. You can quibble with the effectiveness of an Evidence course in terms of its success at cross-examination training — but you can’t call it theory.

Michael asserts that law is a lousy graduate school — but I think we can go farther and state that in fact, law is not a graduate program at all. We call it “graduate school” because in most cases, you need to have an undergraduate degree to get in. But the term “graduate school” also suggests academic rigour, extensive scholarship, and detailed research into a subject’s fundamental nature, usually with a major thesis or dissertation requirement. That’s not law school. Invariably, those who take a graduate degree in a particular subject have already achieved an undergraduate degree in the same subject. That’s not law school, either — law school is our first exposure to the subject. Law school is a Bachelor’s degree.

Here in Canada, at least, we’ve always recognized this. Most Canadian law degrees are LL.B.s — Bachelors of Laws — even though you usually need to have an undergrad degree before you can enroll. American schools, by contrast, grant J.D.s, and I’ve never  understood how what is basically the same degree is given the title “Juris Doctor” — in no way does a law school degree deserve the comparison to a doctoral program. But “J.D.” sounds great, so much so that several Canadian schools (including my alma mater, unfortunately) have switched the name of their degree from an LL.B. to a J.D. without making any  substantive changes to the program.

This reminds me: during my own law school tenure, many of us would hang out at the Grad House lounge. At one point, the real grad students — the Masters and Doctoral candidates — complained about all these “baccalaureates” coming into the graduates’ building and taking all the good seats. I dismissed it at the time as petty rivalry, but I now wonder whether they didn’t have a point. When you get right down to it, your average law school curriculum is basically half Intro to Law and half Bar Exam Prep. You can call that a lot of things, but you can’t call it a “graduate program” without doing some serious damage to the generally accepted meaning of the phrase.

I think it would be great to see the current J.D. or LL.B. degree reconstituted as an undergraduate degree, the same as a Bachelor of Arts or Commerce. Four years of undergraduate work would be enough to provide a healthy grounding in legal theory, legal history, aspects of justice, all the things that law schools now teach, in a mixture with Torts and Contracts and Business Associations and so forth. In fact, a four-year Law undergrad would be a terrific grounding for any number of disciplines — don’t we always tell law students that a law degree opens up vast new career horizons to them? Better yet, students in other fields could minor in Law, or even take a handful of law electives. Think of the boost that would give to legal literacy among university graduates of all kinds, and to public legal education as a result.

How would we train practicing lawyers, then? Well, schools could create an MLP degree, a Masters of Legal Practice to mirror the Masters of Business Administration. You’d require an undergraduate degree in law to ensure the student had thoroughly learned the theory and the basics, to which you would add business skills, professional responsibility training, client focus, project management, and the other hallmarks of a competent practitioner. Or the local Bar could set up a training program, perhaps as a joint venture with the private sector, perhaps funded directly from the dues of licensed members. There would be separate streams for corporate, consumer, litigation, and single-client (i.e, government and corporate department) practice, all structured in consultation with state bars and courts and accreditation authorities. This is pretty much how legal education proceeds in the UK, and they seem to have done pretty well with it.

It’s a fair question whether we could handle such a radical recalibration of the teaching of law — it may well be that we’ve gone too far and too long down the current road to go back and try something new. (Although the University of Western Ontario, following the lead of the Carnegie and Best Practices Reports for legal education reform, is hosting a Canadian Clinical Legal Education conference next month). But at the same time, it looks increasingly as if some kind of radical treatment will be prescribed for legal education sooner or later. The awkward, neither-fish-nor-fowl nature into which law schools have evolved just isn’t sustainable in a legal marketplace where everything else is now subject to intense re-evaluation.

Resolving the legal education disconnect

In conversation last week with a law school professor, the subject of law firms’ tunnel vision when recruiting law graduates came up. Firms focus relentlessly on the students with the highest grades, the professor lamented, even though these students can be one-dimensional performers with an affinity for the academic environment and no competing pressures outside the classroom. Contrast that with an older student, perhaps with a couple of kids and a part-time job, with or without a partner at home, who took an unorthodox route to law school and perhaps struggles to compete with the younger students — but who is still bright, hard-working, experienced and capable of being a standout lawyer. The firms never even look at graduates like that, and an opportunity is missed on both sides.

At first blush, I agreed with this. I’ve complained myself about the relatively unsophisticated approaches to recruitment that many law firms still take. The students most in demand are the top academic performers from the “top” schools, even though there’s nothing beyond the Cravath Theory to prove that students with high law school marks will make the best lawyers. Does a fleet of “A”s guarantee good lateral thinking, business acumen, client awareness or collaborative work habits? Of course not. Yet firms continue to flock to the academic stars while overlooking graduates who despite (or even because of) their unusual backgrounds would make superb lawyers whom clients cherish. Typical narrow-minded law firms.

Then I was struck by this thought: “Hang on. Who’s giving out these marks in the first place?” I turned back to the prof to ask whether the schools don’t bear responsibility of their own. If the older mother of two with a part-time job is more deserving of employment consideration than the 20-something with his nose in the books all year, why is she at the bottom of the graduating class while he’s at the top? Why doesn’t she get the A, if in fact she’s the stronger candidate to succeed?

But even as I asked the question, I already knew the answer. Law schools don’t assess students in terms of their likely success at the bar. They assess them the same way schools everywhere assess all their students — by the satisfactory achievement of knowledge standards, usually expressed in written form in short-term exams and long-term papers. In the same way that IQ tests measure only the taker’s ability to score well on such tests, so too do good marks in law school only measure one’s ability to complete law school courses to the school’s satisfaction. It has nothing to do with whether you’ll be a good lawyer someday. This is not a secret and it’s not a novel discovery. But the idea that law school achievement augurs professional success remains the fundamental assumption underlying law school, and the bar has accepted it for decades. It’s time for that to change.

The problem with using a law degree as the de facto qualification to seek admission to the bar, and the disconnect between the priorities of academia and the practicing bar, have never been so clear. A good example is a report recently released by a task force of the Federation of Law Societies of Canada on the common-law degree. It is not, by most measures, a radical document. It recommends that law societies in common-law jurisdictions adopt a uniform national requirement for entry to their bar admission programs, which has never existed and would certainly be nice to have. It does not recommend that law schools transform their curriculum, nor does it go nearly as far as the Best Practices Report, the Carnegie Report, or the ABA’s recent decision to focus on output measures when certifying law schools.

What the report does recommend is that every law school in Canada teach a stand-alone ethics and professional responsibility course, given the importance of these attributes to the practice of law. This has not gone over well with the law school community, to judge from comments in this Canadian Lawyer article from, among others, widely respected law professor Harry Arthurs:

[H]e finds it odd that the federation “took it upon themselves to lay down what law schools should be teaching and how they should use their resources and what their job is in general. Law societies, much less the federation, have no statutory power to tell law schools what to teach or to what end they should spend their scarce resources,” he says. … While Arthurs notes that the law society has the right to say who it will admit to practice, “they certainly can’t say to law schools, ‘You are going to teach legal ethics, you are going to teach certain skills competencies, and you are going to file a report annually which provides us with detailed information to demonstrate that you’re doing that.’”

Professor Arthurs is, of course, absolutely right. Law schools don’t report to law societies and are under no obligation to teach anything to their students simply because the law societies say so. His comments bring that fact into sharp relief — and should, I think, serve as the launching pad for the profession to rethink its traditional acceptance of the LL.B. or J.D. as the default qualification for entry into the profession. The first three years of its lawyers’ education and training are almost entirely out of the bar’s hands. That should strike the profession’s leaders as unacceptable and should galvanize them into doing something to correct it.

Let me be clear that this is not a call to impinge on law schools’ academic freedom or to take over the schools’ operation. I spent three years in law school, and running one is just about the last thing I’d want to do — they’re complex institutions whose management can be a challenging and thankless task. But they are not designed to be lawyer training facilities, and they are not practice-friendly. I still remember the law prof who told our class, “A students become professors, B students become judges, and C students become very rich lawyers.” I think he meant it to reassure us not to worry so much about grades. But it expressed perfectly the irrelevance of academic distinction to professional success, the self-perpetuating nature of law school achievement, and the remarkably arrogant belief that the highest form of legal accomplishment is the teaching of law.

The bar’s role is not to run law schools — lawyer-run institutions don’t tend to inspire confidence either. The bar’s role is to ensure that its members receive the best training available, in order to ensure the durability of professionalism and high-quality service to clients. I think that obliges the bar to look long and hard at the law degree and decide whether a three-year program over which the bar has no control is an appropriate prerequisite for practice. If the answer is yes, then the profession should quit complaining about what law school does and doesn’t do — lawyers don’t run law schools, and if they don’t care to create an alternative, they have nothing more to say on the subject. But if the answer is no, then the profession is obliged to come up with a prerequisite that it believes does provide appropriate preparation for admission to the bar, over which it does exercise an appropriate degree of control, and for which it bears complete responsibility (at considerable expense, I might add).

Should that come to pass, law schools will suddenly face competition in the lawyer training marketplace. And they’ll face a choice themselves: to maintain their current focus and perhaps risk a massive decline in enrollment and tuition, or to re-engineer themselves and compete directly with lawyer-operated training centers. That’s not a happy choice, and I don’t wish it on the schools gladly. But if and when the bar decides that it can no longer responsibly delegate the first three years of legal training to completely independent third parties, then that choice will arrive. This is a difficult but necessary process we can’t put off any longer.

The apprenticeship marketplace

Critical mass, like the famous definition of obscenity, is one of those things you can’t necessarily define but that you know when you see. We’re approaching a critical mass of discourse on the necessity of change within the American law school system, and when we reach that point, the focus will switch overnight from necessity to inevitability. The latest step in that direction comes courtesy of a National Law Journal article with the suggestive title “Reality’s knocking.” It details efforts underway at numerous law schools — including Washington and Lee, Dayton, Northwestern, Indiana/Bloomington, UCLA, UC Irvine, and the latest entrant, Duke — to integrate market-readying client-focused training into their programs.

[A] growing number of law schools are emphasizing teamwork, leadership, professional judgment and the ability to view issues from the clients’ perspective. “I think we are at a moment of historical change across the landscape of legal education,” said Washington and Lee Dean Rodney A. Smolla. “When we look back at this period in five to 10 years, we will mark it as the time when the whole mission of law schools made a fundamental turn.”

The thrust of these changes — whether shortening the law degree by one year, supplementing traditional coursework with legal skills instruction, simulating law firm environments (complete with client relations and billing), or introducing professional values training in the first year — is to accelerate law graduates’ development into full-fledged lawyers. By doing so, these schools hope to improve relations with the private bar (an increasingly important source of funding), better compete with other school for the most promising pre-law candidates, and (one would like to think) better serve the long-term interests of their students. By and large, these are very welcome developments, and there’s no doubt in my mind we’ll see a lot more of them in the next few years.

What especially caught my interest in the NLJ story, however, was a nearly-throwaway paragraph illustrating the kinds of pressures schools are feeling from the private bar:

The legal labor market is saying that it’s no longer willing to pay top dollar to recent graduates who lack work experience. Law firms including Washington’s Howrey and Philadelphia’s Drinker Biddle & Reath recently announced apprenticeship programs wherein starting associates earn less and spend a significant amount of time training and shadowing partners.

I’ve written about these programs before — Frost Brown Todd, Strasberger and Price, and Ford Harrison have followed suit — and I hope to put together a much more detailed treatise on this subject down the road. Under these initiatives, the law firms pay their new associates much less than the market rate and require far fewer billable hours from them; associates spend most of their time in apprenticeship, training and shadow programs with experienced lawyers, with (unbilled) client contact and observation opportunities where possible. These firms have heard their clients complain about paying to train new lawyers unprepared by three years of law school, and either to mollify these clients, to stake a marketing advantage, or (one would like to think) to actually better serve both their clients’ and their lawyers’ interests, they’ve responded with this new approach.

But what’s most interesting is that these innovative new programs at the law firms don’t really differ in any substantial way from the innovative new programs at the law schools. Both are focused on providing new lawyers with the practical training, skills development, and professional awareness that a traditional law degree and most bar admissions processes fail to deliver. Both aim to reduce the steep learning curve that new lawyers have always had to climb, making them readier to serve clients and generate billable work than they otherwise would be.

What this means is that for the first time, law schools and law firms are providing the same service — apprenticeship training. And when two or more providers offer the same basic service, you’ve got yourself a marketplace. Very good things can happen in marketplaces — intense competition to improve offerings, constant pressure to innovate, a diversity of ideas and approaches, continual erosion of barriers to entry. All of these developments work to the ultimate benefit of that marketplace’s consumers — in this case, new lawyers and (ultimately) the clients whom they’ll serve. The more schools and the more firms that enter this marketplace, the better and faster the results will flow.

I can’t wait to see what a lawyer apprenticeship marketplace might produce over the next several years. But there’s a potentially major problem with this playing field: one of these providers charges its consumers an annual tuition to receive this service, while the other pays its consumers an annual salary. That’s no contest, and in the long run, it will mean that this is a service you can’t charge students to receive — or, more radically, one that new lawyers won’t earn a salary to obtain.