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.

Technology

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.

Informatics

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.”

Apprenticeship

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.)

Innovation

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.

The best and the brightest?

It’s a small thing, but it’s been bothering me disproportionately, so I want to say a few words about one of my least favourite current phrases in the law:  “the best and the brightest.” It’s normally used in a talent recruitment or institutional marketing capacity to describe the very small group of the very best lawyers and law students, and I must have come across it a half-dozen times in the last week alone. An archetypal example was uttered in April by US Supreme Court Justice Antonin Scalia, in response to a question put to him by a law student who asked what she had to do to become “outrageously successful” without “connections and elite degrees.” Justice Scalia’s response eventually came around to her chances of clerking for his court:

“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.

To the class of 2012

….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.