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.

[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.

“By and large, I’m going to be picking from the law schools that basically are the hardest to get into. They admit the best and the brightest, and they may not teach very well, but you can’t make a sow’s ear out of a silk purse. If they come in the best and the brightest, they’re probably going to leave the best and the brightest, OK?”

Justice Scalia’s criterion for identifying excellent future law clerks is depressingly common within the profession. He doesn’t actually know how to identify the best and brightest law students and new lawyers, and he’s hardly alone in that. He’s one of many people who rely upon a law school or law firm’s exclusivity, elitism, household name or other purported quality signifier as a substitute for having to actually determine “bestness and brightness” for himself. It’s a habit hardwired into tens of thousands of annual decisions about  which school a 1L should attend and which schools a law firm should recruit from, and it doesn’t do us any good.

Let’s start with the law schools. Everyone knows there are elite schools and non-elite schools, right? Even if you don’t read the noxious US News & World Report law school rankings or their equivalents in other countries, you “know” which are the “best” schools, especially if you graduated from one of them. How do you know? They have the best reputations, of course — even if you couldn’t name one aspect of the educational experience that justifies “elite” status or name three elements of substance that differentiate any one school from another. “Reputation” and “prestige,” based on countless dimly illuminated factors poked into the crannies of our minds, might hold sway, but we have no empirical evidence that an “elite” law grad is any better or brighter than a “non-elite” grad. Magazine rankings and law blog chatter serve only to confirm our existing region- and class-based prejudices about what places one school above another.

The great majority of law schools are largely indistinguishable from each other, in terms of the nature of their education, the quality of their teaching, and the (negligible) practical elements of their training. Almost every law student is smart and works hard — that’s the baseline standard of admission (along with, in most cases, tremendous pre-existing socio-economic advantages). Some schools keep class sizes intentionally small or raise tuition beyond most peoples’ reach, but while that may make them more “exclusive,” it doesn’t make them any better at teaching students the law. If there are ways of determining the “best and brightest” law students, finding out where they take their classes hasn’t proven to be one of them.

None of that keeps law firms (and Supreme Court justices) from relying on school pedigree to make interview selection and lawyer hiring decisions for them. But that raises an even more pernicious problem: let’s say you could figure out who the “best and brightest” law graduates are — how do you know which of them will turn out to be great lawyers? Law school prowess has little relevance to eventual lawyer success — the absence of correlation between LSAT scores and lawyer success has been proven. Yet those who hire new lawyers continue to rely on law school performance as a hiring factor, even though it tells us little about whether a student possesses or can quickly acquire the skills that practising lawyers need, the appetite and aptitude for client service, business management, persuasive advocacy and ethical steadfastness.

Now, here’s the funny part: the system has in fact come up with a way of determining which are the “best and brightest” law students  — they’re the ones who get hired by the “best and brightest” law firms! And how do we know which firms fall into that category? Well, they’re usually very old, very large, and very well-known (and big old famous organizations are all but guaranteed to prosper, right?) But the main reason these firms are considered the best is — wait for it — they recruit only from the best law schools! The Cravath system has been around for so long that the “top” law schools and the “top” law firms now perform a little pas-de-deux, each using the other tautologically to confirm its own higher sense of self (“our graduates go to the best firms”; “we recruit only from the best schools.”)

And that brings me to the final aspect of the “best and brightest” phenomenon that’s so problematic: this belief  that the “top” lawyers are to be found at the “top” firms. I am not saying, not a for a nanosecond, that large well-known firms don’t count among their  ranks some of the finest lawyers the profession has produced. Of course they do. But they don’t own the exclusive monopoly on that particular asset. I’ve met brilliant lawyers of extraordinary skill in midsize regional firms, solo practices, corporate law departments and public-sector environments. And I’ve met lawyers who work for famous law firms whose skills and talents are pedestrian. Succeeding in a BigLaw environment is undoubtedly a sign of the fact that you have the qualities to thrive in that kind of environment — but those qualities are not automatically equivalent to superior talent and execution. In our big-firm, AmLaw-obsessed legal culture, this obvious truth keeps getting lost.

All of which is to say, if you find yourself talking about “the best and the brightest” the legal profession has to offer, or you hear someone else saying it, ask a few questions: Best at what? Brightest according to whose standards? Based on precisely what criteria, and how many of those criteria are irrelevancies, assumptions, stereotypes or conventional wisdom? Let’s not buy into a myth that puts you down or puts other people up without sufficient cause. I think a powerful, sweeping assessment like “the best and the brightest” deserves and requires more scrutiny than that.

As always, I’ll also post the article here.

The legal profession is on the verge of an extremely serious problem. If you want to see what it looks like, check out what Chicago-based firm Mayer Brown has just done. According to the Chicago Tribune, the firm has offered its new associates a deal: take a $100,000 pay cut (to $60,000) and go work in-house for one of the firm’s large clients like Kraft or United Airlines. The job is guaranteed for one year and not a day more — after that, if the company doesn’t keep the associate, she’s on her own.

It tells you something about new lawyers’ state of mind that most of the associates grabbed this opportunity. As John Wallbillich at the Wired GC observes, there’s little downside for the associate: either he’s hired, or he’s let go with valuable experience under his belt, or he develops an arm’s-length relationship with the client under his own shingle. And from the client’s perspective, hey, free lawyers are always nice to have. The article indicates other firms might be reluctant to follow Mayer Brown’s lead, in case the seconded associate bombs and the firm is blamed — which I find pretty amusing, since these firms don’t seem to mind if the associate bombs while pumping out billable hours on the client’s dime. But whatever, the client seems happy enough, too.

So that brings us to the question: what’s in this for the firm? I mean, Mayer Brown is basically paying associates $60,000 not to work for them. This, at the same time that dozens of large firms are paying associates not to work for them either, but rather to report to law clinics and public-interest legal employers, or to travel or do “something meaningful.” And still other firms are paying future associates still in law school to defer their employment with the firm, maybe for good.  These current and future lawyers evidently hold so little value that their employers will pay someone to take them off their hands. Associates are starting to look like the equivalent of subprime mortgages for law firms — toxic assets they want moved off their books.

Law firms paying associates not to work for them isn’t just a symptom of the recession, though — it’s worse than that. In normal marketplaces, employees are paid roughly in accordance with the value they produce through the application of their skills and knowledge to their assigned tasks. In smaller law firms, this holds true: a partner won’t take on a new lawyer unless there’s work that needs doing and the lawyer can accomplish it with enough competence to keep the clients satisfied and the fees coming in.

But the large-firm leverage model skewed that system. An associate could be assigned endless cycles of rote work with little value, billing out the hours logged until the associate paid off his annual cost to the firm and became an engine of  pure profit. This worked because institutional clients didn’t know or care enough to question exactly what the associate was doing and why he required so much time and money to do it. The associate’s value to the firm lost any connection to his actual skills and qualifications.

That system, as you may have noticed, is coming to a grinding halt. For a variety of reasons covered here before — closer scrutiny by more sophisticated and motivated clients, new technology and processes capable of handling rote work cheaply, low-cost alternatives to associates in low-cost jurisdictions — large firms won’t be able to employ armies of associates on work that a bright law student could do. In many cases, they’ll have to restrict the number of new lawyers in their employ to those who can handle sufficiently sophisticated work that a client is willing to pay for. The diamond — or the cylinder — will come to replace the pyramid, and law firms will be leaner, more effective and more rational organizations for it.

But first, the profession is going to go through a crisis, one triggered by a growing buildup of law school graduates who can’t find work. Year after year, we’ll produce more new lawyers than the market will hire — the large firms won’t be taking on nearly as many, while legal talent demand overall will narrow to lawyers with proven skills and/or experience. And these masses of unemployed law graduates are going to make us face an ugly truth we’ve been avoiding for years: we’re doing a terrible job of training our future lawyers.

Whether they ought to or not, most law schools don’t train their students in the skills they need to contribute value as lawyers — new associates often end up with rote work because in many cases, they’re not equipped to do much else. The bar admission process offers too little training and comes too late in the game to provide much help. Articling terms, where they exist, offer mixed results in terms of producing competent lawyers. We know all this, but we haven’t been sufficiently moved to do anything about it, because new lawyers always seemed to muddle through somehow.

But the emerging economics of the new legal marketplace won’t allow us to disguise unskilled law graduates as billing drones or on-the-job training projects anymore. Unless they can hit the ground running as reasonable contributors of client value, these graduates will be very hard-pressed to find work as a lawyer.  Hanging out their own shingle will be a risky option, given their paucity of skills, but one that many of them simply may have to take.

A huge disconnect will quickly become evident: our professional admission system still imagines that purchasers of legal services are willing to effectively subsidize the new lawyer training process. The purchasers will say otherwise, and this reality will bear itself out in rising new lawyer unemployment rates. This will force us to accept that new lawyers must be ready, upon entry to the bar, to provide at least a minimal level of useful legal services to clients — a base of competence from which they can grow as professionals. And that realization will lead, faster than we think, to a wholesale restructuring of the legal education and lawyer training system.

When this change will happen, how long it will take, what form and directions it will assume, which institutions will survive and which won’t — I have no idea. I dislike making predictions as a general rule, but this seems to me less a prediction and more the inevitable result of clear trends now well underway. When law firms pay their lawyers to work for someone else, something has gone seriously wrong. We’re looking at the canary in the coal mine.

And as always, I’ll also post it here:

….and so once again, best wishes from all of us on the faculty to you, the class of 2012, as your journey through law school begins.

Before I yield the microphone, I have some news to share both with you and with my colleagues: that little lottery ticket I bought on a lark at the corner store last month turned out to be the sole winner of the $6.7 million jackpot. When the dean returns to her office, she’ll find my graceful letter of retirement on her desk.

And so, as this is my last official function here, and as I happen to be at the podium, I thought I would share with you, the class of 2012, my unfiltered thoughts about the legal education you’ve signed up for and the legal profession you’ve begun the process of entering.

Many of you have already approached me and other faculty members to ask about the job market for law graduates – as well you might, since every day brings news of fresh casualties from the Great De-leveraging. This is undoubtedly your primary concern ¬– a far cry from my first day of law classes 19 years ago, when our chief interest lay in finding out what downtown club was hosting the latest orientation event. We didn’t start thinking about jobs until our second year; I’d be surprised if anyone here hadn’t thought about jobs by your second day.

Of course, in my first year – it really wasn’t that long ago, you know — the classrooms weren’t named after law firms, and the career services office was a locked and unstaffed storeroom full of firm brochures halfway down a basement corridor. Most of the faculty considered employment for graduates a subject beneath their attention – at least, employment other than as a law professor or judge. This was to be expected, since few of them had more than a passing acquaintance with life at the private bar, and more than a handful had philosophical objections to market-based economies in general.

That’s all changed now, of course. For better or for worse – and I can find you advocates for both sides – the evolving consensus is that law schools should make at least some effort to help you secure jobs and/or to ensure you possess some skills and knowledge geared towards private law practice. The career services office is now in spacious quarters on the main floor and staffed with full-time paid professionals. On-campus interviews by law firms are an unremarkable fact of life. Practicing lawyers teach numerous courses – at some schools, in fact, these sessional lecturers outnumber the full-time faculty. No one could seriously question whether law schools have made an effort to accommodate your career interests.

But is it enough? Some people say we’ve only improved the extra-curriculars, and that the fundamental nature of the degree is still traditional to the point of being reactionary. Here in Ontario, the mandatory first-year curriculum hasn’t changed in more than 50 years – you’re going to learn the same subjects this year as your predecessors did when JFK was the president down south. We still teach you the underlying principles of law and make you read judicial decisions about the application of these principles to various legal problems – and we still don’t give you the opportunity to apply those principles yourselves. Aside from a few procedure and ethics courses, most schools don’t give you much of a glimpse into the life of a practicing lawyer. Call it a J.D. or an LL.B., but your average law degree remains more a liberal arts education than a graduate or professional instruction, and certainly is not preparation to practise law.

Or is it too much? Spend enough time as a law school professor, and the drift away from actual pedagogy and towards market-readiness training seems irrefutable. I’m not naïve enough to believe that you or your predecessors ever enrolled in law school for the sheer joy of learning Land Transactions or Business Associations. But the drive to generate nothing but the highest grades in order to generate the most job offers has now become relentless. Too many students now make the pursuit of an A the primary if not the only purpose of taking a law course.  If many faculty members have been too slow to recognize the professional purposes of a law degree, many students – and the law firms that eventually hire them – have been too quick to turn law school into a jurisprudential version of the college football season and draft, with too much attention focused on what comes after graduation, not before.

The increasingly uncomfortable truth, unfortunately, is that we law schools are stuck between these two extremes. To a growing extent, we are losing our sense of direction and purpose: neither fish nor fowl, neither institute of higher learning nor professional training college. I fear, in trying to be both, we have ended up being neither. Forced to hew to our longstanding structure by both faculty and tradition, but pulled hard the other way by the private bar and the realities of the legal marketplace, we have spent the last two decades missing an opportunity. With few exceptions, we have yet to take a stand and say, “This is what law school is for. This is the part we play in the legal community and our society.” What is the role of law schools in the 21st century? I don’t know, and I’m not sure most of my colleagues do either.

This is a serious problem for us, because these are times of great upheaval, and if we do not choose change, change will be chosen for us and applied to us. The private bar’s unhappiness with legal education has never been higher – and the bar’s presence in our daily lives and influence over our students’ attitudes have never been higher either. More law societies and state bars are re-examining their bar admissions processes, and I foresee a growing belief that if law schools will not give the bar the sort of new lawyer training it wants, the bar will provide that training on its own and bypass law schools altogether.

But this is also a serious problem for you, because you will graduate into a 21st-century profession with which you will be largely unfamiliar and for which you will be largely unprepared. To the extent we here at law school are well versed with the practicing bar, it is with a 20th-century practice model, one based on:

• exclusive control by lawyers over the selling of legal services,
• technology as a tool for the completion of tasks by lawyers, rather than as a means of performing those tasks alone,
• uninformed clients who exist in either a fiduciary or adversarial position with lawyers, and
• work recorded and billed, and lawyers rewarded, by the hour.

Each of these pillars of the legal profession we’ve always known is now buckling, along with many others (and that’s not to mention potential changes to ethics standards such as client conflicts of interest and non-lawyer ownership of firms). The nature of the practice of law is changing, and none of us here know what it’s changing into. What’s worse, neither do the people who’ll be administering your bar passage or the people who’ll be hiring you. There’s never been so much uncertainty around what the nature of a lawyer’s professional life will be like – and yet your legal education will be remarkably similar to the one I received in 1990. I’m not sure whether there’s anything we can do about that – but I sure do wish we would try.

My fervent parting wish, in fact, is that law schools would take the lead in figuring out what tomorrow’s legal profession will look like, so that we can prepare tomorrow’s legal professionals to lead it. There are some very honourable exceptions to this, but as a general rule, law schools have kept a low profile in, or even absented themselves from, the important discussions and debates taking place right now about the future of law. Lawyers, law firms and lawyers’ organizations are doing most of the talking, and although we are constantly referenced in these discussions, we seem disinclined to take a central role. We must appreciate that the result of our failure to secure a place in these conversations will be that the decisions that flow from them will be applied to us, not by us.

But that is our problem, not yours. Your challenge is to prepare yourselves as best you can for a future profession that is still taking shape – to anticipate “unknown unknowns,” as the expression goes. You can’t know the final form of things to come, but you can discern the principles that will shape it: professionalism, collaboration, innovation, and above all, client service. So start now: get in the habit of cooperating with your classmates, join social networks with a lawyerly focus, follow the profession’s innovators through blogs and podcasts, and wring as much information as you can between classes from your sessional lecturers about the experience of the lawyer grind – and, yes, from your veteran faculty members, too: they’ve seen it all come and go, and they have wisdom you can only guess at.

Use these resources, and as many others as you can pull together, during your time here. Understand, above all, that your life at law school – the courses, the interviews, the grades, all of that – is not the only or a sufficient aspect of your legal education. It’s one piece of the puzzle, and you need to find the others. The days when a law degree was all you needed to be a lawyer, if they ever existed, are gone now. Your preparation for a legal career – a career that will be different from that of anyone who’s gone before you — is now your responsibility. Don’t look back three years from now and say, “Law school didn’t prepare me for a legal career.” Like it or not, we can’t do that anymore. Like it or not, that’s your job – and it starts right now.

As does my retirement. Drinks in the law lounge are on me.

“Relatively early in the 20th century,” [Dean Erwin] Chemerinsky observes, “preparing lawyers for the practice of law was relegated to the bottom rung of law schools, and the top law schools didn’t see it as their primary mission. Could you imagine if a school graduated medical students or dental students who never treated a patient? Yet most law students have never had a client.”

The new school aims to change all that, starting with its first year, when law students will be introduced to the practical tools of their profession through a lawyering-skills class that integrates clinical experience. Then, in their second year, students will work through simulated fact situations, honing their skills in a particular field of civil or criminal law, so that when they are ready to register for a third-year, semester-long clinical course, they will already have a working knowledge of how to represent clients. “My central vision for the school,” says Chemerinsky, “is that we will do the best job of any school in the country in preparing students for the [actual] practice of law. A top-quality clinical program is key to achieving this.”

Among UC-Irvine’s other goals is to encourage more interdisciplinary study among law students and produce a healthy ratio of graduates taking public-sector jobs. It’s a bold experiment, and the odds are long against it, but there’s no better time than this for a new kind of law school to take root within the profession. Perhaps needless to say, I think this is a great idea.

But what really caught my imagination, and sparked a whole other line of thinking, was one other aspect of the UC Irvine model: thanks to funding by a clutch of law firms, the university plans to offer every student a full scholarship — that is to say, free tuition. That’s a concept that, among other things, cuts to the heart of what law schools are for. If the idea behind a law school is to turn out the world’s best lawyers — and UC Irvine appears to be aiming that way — doesn’t it make sense to remove barriers to that goal raised by the ability of the best candidates to afford the program? And in turn, doesn’t that get us thinking a little about the role of the marketplace in the formation of lawyers and the services they will eventually deliver?

This ended up, interestingly enough, dovetailing with a growing discussion within journalism circles about the future of the newspaper. You’ve certainly read enough articles about it and heard me talk about it here before — the fact that most everyone accepts newspapers are dying (and TV is next) and that the web is the immediate future, but that no one knows how to build a profitable business model that can sustain a news-gathering organization.  Premium subscriptions, micro-payments, online advertising — it’s all been tried and nothing has really worked yet. So now people are starting to talk about radically different solutions.

In The Guardian, Maura Kelly looks at non-profit newsrooms and start-up media organizations like GlobalPost. But interestingly, Bruce Ackerman (of Freakonomics fame) and Ian Ayres effectively combine these two approaches and have proposed (also in The Guardian) national endowment systems for investigative journalism:

In contrast to current proposals, we do not rely on public or private do-gooders to dole out money to their favourite journalists. Each national endowment would subsidize investigations on a strict mathematical formula based on the number of citizens who actually read their reports on news sites. …

[C]ommon sense, as well as fundamental liberal values, counsels against any governmental effort to regulate the quality of news. So long as the endowment only subsidizes investigative expenditures, in-depth reporting will get a large share of the fund – provided that it generates important stories that generate broad interest.

The endowment must monitor media hits and circulation counts. This is doable. Advertisers already rely on independent audits. So can the government. Some governmental monitoring of financial matters is also necessary. News organizations would otherwise be tempted to obtain subsidies for marketing and business operations. Without minimizing the problems involved in institutional design, the creation of an effective and disciplined national endowment seems entirely realistic.

The driving theory behind these efforts to save journalism is that investigative reporting – finding out what people don’t want to tell us — is a public good that’s too important to be left to the vagaries of the market. Just as we don’t rely on privately run firehouses to keep our cities from burning down, we can’t rely on privately run media companies to bring pressure to bear on our society’s power brokers. Newspapers, as Seth Godin says, wrap two cents of journalism with ninety-eight cents of overhead and distraction. Investigative journalism suffers from the tragedy of the commons: everyone benefits from its existence, but hardly anyone is willing to pay for it by itself. By removing (or at least reducing the impact of) market forces from its implementation, we can help investigate reporting to flourish and deliver real benefits of transparency and accountability to our society and its institutions.

What does any of this have to do with UC Irvine’s law school and its full-scholarship program? Think about this: what if every law school in the world had free tuition? (Or, more accurately, no tuition.) What if interested third parties covered all the costs of legal education in order to ensure it was done properly, freed from the shackles of market pressures and US News & World Report silliness? Now think about this: what if lawyers were free?  What if we decided that the provision of legal services was so important to the operation of a just society that market mechanisms preventing access to justice should be removed? What would our profession look like then?

Well, it’s a safe bet that our graduating law school classes would be far more diverse, especially socio-economically: the built-in bias in favour of applicants from wealthy backgrounds would fade. It’s also a safe bet that a law school curriculum designed to maximize the benefit of each graduating lawyer to the public good would be incredibly different from what most law schools now offer. Also very different would be the qualifications required of the people offering the courses.

What would become of the private bar? Remember, lawyers in this system aren’t charging fees directly; they’re billing the government or a non-profit entity for their work (but not, I’ll wager, for their time). Rationally, the funding organization would want to create certain standards of competent advice and productive service; it would be interesting to see which ones they came up with. Law firm compensation and advancement likely would not be based on hours billed but on other criteria — perhaps client satisfaction, risk reduction, value generation and so forth. Solos would be plentiful, mega-firms less so. Millionaire lawyers, like millionaire media and performing artists of the near future, would be rare. More people would go into the law not to make money, but to serve society. (Many doctors are already familiar with this sort of model, and I think those who have to answer to a for-profit entity would describe a very different quality of service than those who answer to a non-profit entity.)

This is, I readily admit, a thought exercise rather than a practical or even fully desirable scenario; think of it as Imagine for lawyers. There would be plenty of complications and downsides to a publicly funded legal profession. But there are plenty of complications and downsides to our current professional setup too. Today, law is a private-sector business that provides what is very arguably a public good. It’s fair to surmise that at least some of the difficulties and tensions between lawyers and society result from that misalignment.

If lawyers were considered a public good — if everyone knew and could access all their rights, could easily build legal risk management and problem avoidance into their lives and businesses, utterly free from worries about the direct cost because we were all collectively funding it for our mutual benefit — what sort of legal profession would we end up with? What would we lose? What would we gain?

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A good illustration is supplied by two recent items that zero in on the cost of a legal education versus the financial value it eventually delivers. One is an article in Forbes magazine, the other a post at the Tax Law Prof blog; it’s instructive that neither originated in the mainstream legal media (though the ABA Journal’s Law News Now picked them both up).

The average US law school graduate, Forbes says, enters law with $100,000 in debt; the median starting salary for the US law class of 2007, NALP reports, was $65,750, and nearly 40% of all starting salaries were below $55,000. Most American lawyers are saddled with debt for a long time, and while the situation isn’t as dire in other countries, rising education costs have been pushing it that way. You can have an argument whether the debt is worth the career it enables; the more pressing issue is whether law students understand the financial realities of a legal career.

Forbes writes about “the great college hoax,”  drawing a comparison between professional schools and subprime mortgage hawkers: “Misguided easy-money policies that are encouraging the masses to go into debt; a self-serving establishment trading in half-truths that exaggerate the value of its product; plus a Wall Street money machine dabbling in outright fraud as it foists unaffordable debt on the most vulnerable marks.” A few law schools, the magazine reports, deliberately obfuscate the rewards of a legal career, but too many more finesse or downplay the reality of the debt versus the earning power of a law degree.

This is an embarrassment, said the panellists at an AALS Committee on Research Program, the podcast of which is available at Tax Law Prof. The strongest words came from New York Law School Dean Richard Matasar: “We should be ashamed of ourselves.  We own our students’ outcomes. We took them. We took their money. We live on their money …. And if they don’t have a good outcome in life, we’re exploiting them. It’s our responsibility to own the outcomes of our institutions.” Southwestern Law Dean Bryant Garth added: “This group [the AALS] has stonewalled completely and killed any kind of real consumer information for 20 or 30 years, and that’s what made U.S. News own this particular enterprise.”

In some ways, of course, the debt problem will fix itself. One of the reasons law school tuition soared so high over the past decade was that credit was so easy to obtain. Those days won’t return for another decade, and you can expect to see law school tuition (and law school spending) decrease accordingly. Richard Matasar pointed out another self-corrective measure: LSAT applications are holding steady or decreasing at many schools, the first time that’s ever happened during a recession. “They’re catching on,” he said. And the ABA is finally looking at re-engineering its law school certification process, so that “output measures” like employment statistics will become more important.

But I think there’s a larger issue here. These concerns echo the longstanding complaint about law schools, that they don’t prepare students to practise law. But here’s the thing: law schools and the legal profession exist for two different purposes and serve two different ends. Schools are in no way obliged to report to the Bar or to take its priorities into consideration; so why are we constantly surprised that they don’t? The wonder is not that law schools don’t prepare students well for practising law; the wonder is that they prepare them for it at all.

Law schools are involved in one industry — the granting of legal degrees. Legal employers are involved with another industry — the selling of legal services. Law students mistakenly believe — and we encourage this belief — that it’s all one single industry. They believe they’re traveling on a single road that starts in law school and ends in professional employment. In fact, they’re on two different roads, connected only once and briefly by a crowded merge lane that’s now in some disrepair. Students wonder why the left hand doesn’t talk to the right — but these two hands are on entirely different bodies.

Most law schools don’t make a priority of clarifying students’ expectations of a legal career, providing them with data on career prospects, or inducting them into professional practices, because that’s not what they’re set up to do. They grant law degrees; if lawyers’ governing bodies have decided those degrees are a sufficient  preparatory step towards a legal career, that’s the profession’s business, not the law schools’. If that system is not working — and there’s a pretty powerful case that it’s not — then the onus lies on the profession to rethink its training and admission process, not on law schools to rearrange their affairs on orders from an industry to which they don’t report and whose interests they weren’t created to serve.

I’m not suggesting that law schools should be wholly owned and operated by law firms or corporations. I’m not suggesting bar leaders should sit on university boards of governors and direct law schools’ curriculum choices. I’m not suggesting that if law schools want to stay relevant and solvent, they should coordinate their curricula with lawyers’ governing bodies. All these things could very well come to pass regardless of whether they’re good or bad. I am suggesting that we’re not going to make any progress on improving legal training until we understand that we’re not dealing with a single leaking pipeline, but with two pipelines jury-rigged together. We need to take a closer look at our blueprints.

Note to regular readers: I’ll be in Vancouver next week at the Canadian Corporate Counsel Association’s World Summit — drop me a line if you’ll be there too –  so posting won’t resume until the end of the month.

There’s something instructive about this development for the legal industry as well. You’ve been reading a lot, here and all over the blawgosphere, about the recession’s impact on law firms. Today brought us one of the grimmer forecasts, and when it comes from Prof. William Henderson at the ELS Blog, you need to take it seriously. Bill looks at massively over-leveraged US law firms and sees bad things ahead:

[W]ith the potential for historically low collection rates, a large proportion of Biglaw firms are in one hell of a vise.  Salaried lawyers represent fixed costs.  And even if you lay them off, managers are under intense pressure to pay a reasonable severance (e.g., 6 months pay) to preserve the firm’s reputation for an eventual recovery.  Further, firms with the most human capital leverage will nonetheless be stuck with vast expanses of Class A office space under lease terms negotiated during the salad days.  If Biglaw revenues go down 20% for the fiscal year, which is certainly in the realm of possibility for many firms with large capital market practices, profits could dive by 50% or more.

Similar to what happened at Heller Ehrman, the grim financials could put the firms in violation of their bank lending agreements, see Drew Combs, Why Heller Died, The American Lawyer (Nov. 2008), thus requiring partners to pony up more cash.   Sensing trouble, lawyers with the most options start heading for the doors, initiating a sudden and rapid death spiral.  In short, there is good chance that several hallowed Biglaw firms, particularly those with weak balance sheets, will cease to exist sometime in early to mid 2009.

Large firms, especially those in the US that were deeply committed to corporate work, look most vulnerable to the rising economic winds. But really, I don’t see any size or type of practice in Canada, the US or the UK that won’t take some kind of hit from the recession, anywhere from a glancing to a body blow. The question is whether the collective force of those hits will be enough to seriously stagger the private bar as a whole. If not, then we’ll muddle through alright. If so, well….

Vehicle manufacturers are at the heart of the auto industry, but of course they’re not its sole residents. Surrounding them is a circle of  parts suppliers, local dealerships, service depots, used car showrooms, and other ancillary businesses. Then comes a further concentric circle of dependent businesses like gas stations, car rental agencies, transport truck companies, satellite radio installers, and so on — not to mention all the businesses that depend on employees of these inner-circle companies to buy, rent, visit or consume their products and services. Fear of a domino effect through these circles was a powerful argument in favour of government help.

Likewise, although private law firms lie at the heart of the legal industry, there are many other ancillary industries, companies and institutions whose own business models assume a certain level of spending and productivity by the private bar. While we might understandably fixate on the ups and downs of law firms of all shapes and sizes, we should also keep an eye on the long lines of dominoes radiating out from the private bar, because some of them look none too steady either.

Bill Henderson links to an insightful post by Michael Cahill at PrawfsBlawg, who raises the spectre of a “legal education bubble.” The problem of law school tuition increases have usually been passed on to big law firms, which are supposedly poised to pay law graduates (or some of them, anyway) equally high salaries; but if those firms stumble or fall, who’ll help new grads dig themselves out of debt? Not only that, but with credit still mostly frozen, who will lend law students that tuition in the first place? And with fewer private-law jobs available at any salary, Michael worries, when does a law degree slip below the cost-benefit line? If even some of these consequences come to pass, the legal education industry will be looking at a major contraction of its own.

Then there’s legal publishing. If both firms and schools are forced to cut back, law book publishers have a new set of problems, because that’s basically their entire marketplace. Those that have branched out into online legal research will find little help, because they haven’t really diversified: the markets for e-research are pretty  much the same as for books. Legal periodicals depend heavily on advertising from law firms and their suppliers. I’ve already heard of planned cuts to law firm marketing and advertising budgets for 2009, and suppliers like software companies are going to find it harder to sell upgrades and new releases when people are more willing to hold on to their older versions and wait for prices to fall. And so forth.

Lawyers in private law practice tend to forget sometimes that they serve a more complex and important function in this industry than mere sellers of legal services. They’re also buyers of private law practice supplies, everything from students to books to software to newspapers to photocopiers to recruiters to memberships and much more. In The Elastic Tournament, Profs. Henderson and Marc Galanter point out that “large law firms have become immensely fragile institutions.” But really, the entire legal services industry is a fragile ecosystem, and if the center should ever give way, the domino effect could be extraordinary. And I don’t think anyone’s preparing a bailout package for that.

Considering that it has the potential to profoundly reshape the nature of American legal education, I’m a little surprised that the Interim Report of the Outcome Measures Committee of the ABA’s Section of Legal Education and Admissions to the Bar hasn’t received more attention since its release in June. Aside from brief mentions at the places you’d expect — Best Practices for Legal Education and the Law Professors Blog Network — I haven’t seen the report and its implications discussed in much detail. So I thought I might take a crack at it.

What follows isn’t really a summary of the report, which is 65 pages long — neither you nor I have that kind of time. And there’s a lot of content, such as assessment methodologies and other professional education regimes, that’s important but not germane to my present interest: the practicing bar’s long-overdue willingness to play a role in deciding what a legal education should actually accomplish. So with those caveats issued, here we go.

The ABA, for those who don’t know, is in charge of accrediting law schools in the U.S. About 200 schools have received the ABA’s imprimatur so far, and all states recognize that graduating from such schools qualifies a person to take the state bar examination. (Though ABA accreditation is apparently not always necessary for a school’s graduate to write a bar exam, as a recent case in Massachusetts decided (HT to Joseph Dang.))

Anyway, in May 2007, the Section’s Accreditation Policy Task Force recommended appointing a committee to consider revising the accreditation process, in order to rely more heavily on “output measures” than on “input measures.” The afore-mentioned committee was struck in October 2007 and issued its preliminary report this past summer.

What do we mean by input and output measures? The report gets right to that in its very first paragraph:In recent years, there has been a growing sentiment within the legal education community that the Accreditation Standards of the ABA Section of Legal Education and Admissions to the Bar should be reframed to focus more heavily on “outcome measures” – accreditation criteria that concentrate on whether the law school has fulfilled its goals of imparting certain types of knowledge and enabling students to attain certain types of capacities, as well as achieving whatever other specific mission(s) the law school has adopted.

Those who advocate this change maintain that the current Accreditation Standards rely too heavily on “input measures” – accreditation criteria that concentrate on whether law schools are investing the right types and amounts of resources (such as physical plant, number of faculty, and budget) to achieve the goals identified in the accreditation standards and the school’s missions.

This represents a major shift in how the ABA assesses schools’ fitness for accreditation. It’s also — to my mind, anyway — a pretty clearly good one: a school is as good as its graduates, not its infrastructure, especially when they’re graduating into a professional environment. And in fact, outcome measures are specifically and approvingly cited in the preamble to the ABA’s Standards and Rules of Procedure for Approval of Law Schools. But in practice, thanks to written standards at odds with this emphasis, input measures have tended to win the day. The ABA clearly is ready to change that, and the report, in its conclusion, paves the way there:

An outcome-oriented approach to accreditation would call for reframing Standard 302 so that, instead of focusing on the areas and types of instruction that the law school should provide, the Standard would instead focus on the types of lessons the students should have learned … by the time of graduation from law school.

But the committee was also instructed to think about output measures themselves, and to look beyond traditional measures like bar passage and employment rates. It was encouraged, in so many words, to rethink what should qualify as meaningful outcome measures of a law school’s effectiveness. To do that, the report relied heavily on two recent watershed works in legal education: Educating Lawyers: Preparation For The Profession Of Law (Carnegie Foundation for the Advancement of Teaching, 2007) and Best Practices For Legal Education: A Vision And A Road Map (Clinical Legal Education Association 2007).

The committee turned to the Carnegie Foundation (CF) book to answer the key question: “What outcomes may be regarded as central to the legal education field as a whole?”

To prepare students to be competent professionals, CF ascribes three apprenticeships that should make up their education. The first apprenticeship is the cognitive or intellectual, which provides students with the academic knowledge base. The second apprenticeship is the forms of expert practice shared by practitioners. The third is the apprenticeship of identity and purposes, which introduces the student to the values required of the professional community. … In shorthand, CF describes these three apprenticeships as “knowledge, skills, and attitude.”

You could substitute “values” for “attitude” and end up pretty much at the same destination. A law graduate should possess knowledge of the law, the skills with which to apply that knowledge, and the values or attitudes or judgment to use the first two traits ethically and for the public good. The committee acknowledged that U.S. law schools have over-emphasized the first trait to the detriment of the other two.

From that point, the committee dug in for a great deal of research: looking at accreditation standards in other fields of professional education, studying the work of regional and national accreditation commissions outside legal education, and reviewing submissions by groups such as the Society for the Advancement of Law Teaching. At the end of that process, the committee, as expected, recommended that “the Section of Legal Education and Admissions to the Bar re-examine the current ABA Accreditation Standards and reframe them, as needed, to reduce their reliance on input measures and instead adopt a greater and more overt reliance on outcome measures.”

Now, if you’re like me, you’re probably wondering: “So what exactly are the outcome measures that law schools should be measured against?” The committee wondered that too, and asked itself whether the ABA should set out detailed outcome measures when designing those accreditation standards.

But in the end, the committee decided that a law school should be given “considerable flexibility … to determine the outcomes the school seeks to effect (presumably within broad contours established by the Standards and Interpretations) and the mechanisms by which to measure those outcomes.” This is in pursuit of greater innovation and to allow schools more breadth in cost allocation decisions. But it’s also in support of the idea that every school should be allowed to define its own “mission,” so long as it’s then held strictly to account for its efforts in achieving it:

[I]n order to provide law schools with the information they need for making decisions about what outcomes to set and how to measure them, the Committee recommends that the Standards Review Committee and the Council adopt Standards and Interpretations that would set very general parameters regarding outcome measures and then flesh those out with commentary setting forth models that have proven successful and that a school could choose to use if it wishes.

Okay, then: what are those parameters? What should those commentaries be? What are the “broad contours” of the Standards and Interpretations within which schools must define their outcomes? The committee wasn’t sure if its mandate included coming up with proposed wording for new Standards and Interpretations. It would like to do so, though, judging from this paragraph at the end of the report:

The committee believes that its presentation of potential wording for any such new Standards and Interpretations might help to clarify the committee’s vision of the new outcome measures and how they would operate in practice. Accordingly, the committee is inclined to present such potential wording in its final report, with the understanding that any such draft Standards and Interpretations would be merely illustrations, offered to the Standards Review Committee as one of many possible approaches to the subject. Barring instructions to the contrary from the Section Chair, the committee intends to present draft language of this sort in its final report.

Nonetheless, over the course of the report, you can glean some of the factors to which the committee refers favourably and some of the principles that it would like to see schools follow. For instance, here’s the committee quoting from Best Practices’ “seven principles for developing outcome assessments”:

• faculty should formulate outcomes in collaboration with the bench and bar;

• outcomes should serve the law school’s mission;

• outcomes should be adopted only after consensus is reached;

• outcomes should be measurable;

• outcomes should be clear, straightforward;

• faculty should choose a reasonable amount of outcomes in terms of resources available

• outcomes should be reasonable in light of the abilities of the students and faculty.

I don’t think it’s a coincidence that the first factor listed — collaborate with the bench and bar — is the first factor listed. There are numerous other excerpts from the report, either quoted from sources or drafted by the committee. Sift through them and note the underlying theme:

- [L]aw schools should shift in assessment from the conceptual knowledge accumulated by students … to the assessment of practical competencies (professional skills) and the development of professional identity.

- Most lawyers spend most of their time trying to solve problems. Those problems consist of raw facts … presented by clients, along with some questions like “Legally speaking, how do I get myself out of this mess?” or “How do I plan my affairs to avoid getting into a mess like this in the first place?” If our job is to teach students how to “think like lawyers,” then we should train them to solve such a problem.

- Direct evidence of student learning outcomes may include: faculty testing, capstone performances and courses; professional and clinical performances; and third-party testing, including licensing examinations.… Indirect evidence of effectiveness include: work samples; graduate surveys; employer ratings for performance; and self-reported growth by graduates.

- The Law Society [of England & Wales] is currently “developing new forms of examination and assessment of those values, skills, and knowledge [that a solicitor should possess on his first day of practice],” which are “intended ‘to ensure that qualification to practice law is based on an individual’s knowledge and understanding of law and legal practice and their ability to deliver legal services to a high quality, rather than on their ability to complete a particular course or courses of study.’”

- The Australian Law Reform Commission … urged an Australian curriculum re-orientation away from the traditional content focus towards skills and values acquisition and training – towards “what lawyers need to be able to do [rather than] anchored around outmoded notions of what lawyers need to know.”

- [T]raditional legal education does not give enough emphasis to other practical skills such as working with clients, managing a file, the business of law practice, negotiations, etc.

- General Motors has developed an assessment instrument to evaluate the performance of its lawyers, using the Lominger Competencies, with respect to [, among other things ...] knowledge (such as, for example, possessing the appropriate legal knowledge, knowing how businesses work and knowledge about current and possible future policies, practices, trends, technology and information affecting the business and the organization; knowing the competition; and awareness of how strategies and tactics work in the marketplace);

Now, this is just an interim report, and on its face, it recommends only what its commissioners asked it to do: shift the ABA’s accreditation focus from input to output measures. But it seems to me that the committee is also cautiously laying the groundwork for a major rethinking of the purpose of U.S. law schools.

This isn’t just about shifting from input to output criteria; it’s about reframing those output criteria in practical, client-facing ways. The Legal Education and Admissions Section is being asked to think about law school, at least in part, in terms of producing lawyers with knowledge, skills and values geared towards the practical demands of a professional life of client service. I’ll be the first to say that that’s not all a law school should do. As I’ve said before, a law degree is and should remain an intellectual pursuit, “higher learning” in the best sense of the term. But it’s also preparation for using that knowledge in the business of law and the service of clients.

The Interim Report of the Outcome Measures Committee is a first step in that direction and is immensely important for that reason. If the committee continues along this path with its final report, recommendations and implementation, it could end up triggering some of the most significant changes ever to the American legal education system and, shortly thereafter, to the American legal profession itself.

Malcolm Gladwell has written a new book about the factors that most influence the likelihood that you’ll achieve (traditionally defined) career success. Outliers: The Story of Success posits that much of what affects our success is out of our control, and that arbitrary or even trivial factors play a disproportionate role in what we end up doing and how well we do it. As part of the book promotion tour, he spoke with the Globe & Mail the other day and made an observation that I think resonates deeply with the legal profession.

Giving an example of arbitrary success factors, Gladwell noted that a huge percentage of professional hockey players have birthdays early in the year. That’s because the standard cutoff date for hockey programs is January 1, so when all-star teams and other squads are recruited, the players who seem most talented are invariably picked — but in fact, they only seem more talented because they’re older and more physically capable. But then these players get special attention, more coaching, more opportunities, and by the time they hit their teens, they actually are more talented. The same applies in school — Jan. 1 cutoffs mean kids born later in the year are younger and therefore farther back on the learning curve. His point is that arbitrary dividing lines can have huge unintended consequences.

Then the interviewer asked Gladwell, at the end of their conversation, why anyone should care enough about this to actually do anything about it. His reply made me sit up straight:

Because we squander talent. Even in a country like Canada, where hockey is a priority, an obsession, we’re squandering a huge amount of hockey talent without realizing it. We could have twice as many star players if we just changed the institutional rules around finding talent. To me, that’s such a powerful lesson. Because it just says, look, in a simple area like hockey, in a country that cares more about it than almost anything else, if you’re still squandering 50 per cent of your ability, how much more are we squandering everywhere else?

I’d go further and say that squandering talent actually has two components: failing to realize the potential universe of talent at your disposal, and then failing to maximize the talent that you do choose. When you apply that analysis to talent identification, intake and management in the law, you come to realize just how arbitrary and undisciplined we’ve been. Look at it in these terms:

• We set law school admission criteria that aren’t specifically designed to select the best potential lawyers – sidelining from the start countless people who might make excellent lawyers but don’t have the GPAs and LSAT proficiency that schools look for.
• We allow law students to indebt themselves heavily and thereby restrict their early career choices – excluding or eventually driving out lawyer candidates who simply can’t afford the cost.
• We provide training in the legal certification process that aligns poorly with necessary lawyer skill sets – rewarding abilities and accomplishments (100% finals, lengthy memos) that don’t reflect professional demands.
• We recruit graduating lawyers on criteria not rationally connected to business or client needs – continuing to over-rely on student grades and law school reputation when assessing the “best” candidates.
• We give little assistance to new lawyers to acquire the professional skills they need – providing not nearly enough structured, supervised, institutional guidance to fill in the gaps in their first few years of practice.
• We routinely pick on new lawyers as the first ones to throw overboard in a crisis – adding to the growing list of associate layoffs all over the US and UK, White & Case has cut 70 lawyers and Eversheds is preparing to cut dozens more.

I really don’t see how this is sustainable. Every prediction about the next few decades of legal practice assumes a much smaller lawyer population, with Boomers exiting and Millennials not inclined to give their lives over to work. Most forward thinkers in the law also foresee a more streamlined and efficient industry in the near future, where clients expect skilled lawyers applied effectively to requisite tasks. But our existing legal talent pool and our incoming talent selection systems aren’t prepared to deal with these emerging realities.

Our profession essentially places the initial screening process for a population of more than a million lawyers in Canada, the US and the UK in the hands of several hundred members of law school admissions committees. Our governing bodies directly provide only a small percentage of the training future lawyers need, leaving the rest to law schools’ discretion and the vagaries of the private sector. And our system allows law firms, driven by their mystifying business models, to treat their new lawyers like firewood, chopped and stacked at their front door to be either left out in the cold or burned at need, as if there’s an endless supply of the stuff.

What we need, right now, is an empirical, disciplined way to assemble legal talent. Here’s what I think our profession’s leaders ought to consider doing in order to assert some measure of control over, and inject some degree of rationality into, the process of locating and nurturing that talent.

- Mandate sophisticated criteria for law school admission. Law schools currently decide who they will accept and on what grounds, and in doing so shape the profession’s profile for years to come. Carefully crafted, holistic, 21st-century admissions processes should be decided by governing bodies — transparently and collaboratively with schools and other stakeholders — and then applied by law schools, so that we end up with the lawyers the profession needs, rather than the applicants law schools wanted.

- Mandate sophisticated criteria for lawyer education and training. Schools should of course continue to teach legal thinking, theory and history — a legal education should always be a higher one. But the profession has the right and responsibility to stipulate core skills and knowledge with which new lawyers are expected to start their careers. If law schools don’t want to do this, we should create training institutes that will. But the profession should stop pretending that this is anyone’s responsibility but its own.

- Encourage legal employers to better evaluate and mentor their lawyers. I’m a free-market aficionado, and once lawyers are in the private sector, those rules should apply. But a completely laissez-faire approach to how legal employers handle their employees is professionally irresponsible. Offer recruiting and talent management training with the strong expectation that respectable firms ought to apply it. Work to build a culture of compliance with a mature, big-picture approach to talent development.

- Make continuing professional development mandatory. I didn’t say mandatory CLE — we’ve seen where that can lead, seminars booked at the last minute and lawyers BlackBerrying during presentations. British Columbia’s model shows real promise by approving a wide range of development activities: from attending CLEs to publishing articles, from teaching law courses to being active in bar associations, from contributing to study groups to mentoring junior lawyers. Ontario is planning to mandate CPD for lawyers in their first two years: also good.

You know, it strikes me that, just as our consumer and industrial cultures got used to a ready supply of oil, our profession has gotten used to a ready supply of lawyers. In both cases, we squandered an important resource and kept at it until things turned bad.

With oil cheap and its supply apparently limitless, we over-consumed, created massive suburban vistas accessible only by car, and built great big gas guzzlers to ride around in, giving little thought to alternative energy sources. The unfolding collapse of the North American automobile industry is one consequence of this mismanagement, but there’s a lot more to come on this score.

Equally, with lawyers thick on the ground and clients not terribly demanding about how they were used, we built great big law firms around a business model that viewed new lawyers as fungible units to be hooked up to a billing machine. And we gave little thought to whether there were alternative means by which to identify and cultivate potential lawyers or better use the ones we had.

So here’s something to ponder. Is the legal profession at risk of becoming the North American automobile industry, about to be hammered by market forces we never prepared for? Are our clients, fed up with the cost of tapping our traditional resource, ready to cast about for alternative sources of legal talent? And does your firm in any way foreshadow General Motors, a well-known name poised to collapse from short-term thinking and a failure to give customers what they want?