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Tuesday, February 21, 2017

Legal Education in the 21st Century

I argued in an earlier post that Richard and Daniel Susskind’s predictions in The Future of the Professions: How Technology Will Transform the Work of Human Experts are likely to be pretty close to the mark.  In that post, I left open the question of how law schools should respond to this emerging new reality.  I argue below that we should adapt by updating the law school curriculum to ensure that our graduates are better prepared for professional success in the coming decades.

How many lawyers?

The Susskinds’ forecast raises one obvious preliminary question for legal educators that is unrelated to the curriculum: if automation is poised to displace a portion of the work currently performed by lawyers, how many students should law schools be admitting? 

There is a robust debate elsewhere about the appropriate size of the lawyer pipeline, and I am not going to resolve it here.  I will simply note that, if the Susskinds are right, we may need fewer lawyers per capita in the future than we needed (say) ten years ago.  Of course, U.S. law schools are already on pace to graduate far fewer students than in the recent past – nearly 30% fewer students – because of both planned and forced enrollment reductions over the last few years.  Whether further reductions will be necessary to ensure that law students have professional and financial outcomes equivalent to the past is still an open question. 

Of course, the same could be said about nearly every other form of professional education.  As the Susskinds’ book makes clear, many professions are seeing (and will continue to see) marked transformations in the coming decades.  The point is that it is very difficult to predict with any precision what the size of the legal market will be in 10 or 20 years or determine whether the recent 30% decline in the new-lawyer pipeline is too much, too little, or just right.      

What should law students learn?

What is clear is that tomorrow’s lawyers will need additional skills that law schools traditionally have not taught.  This means that, in addition to asking how big the future market for new lawyers will be, we also need to ask a different question: for those who do enroll in law school, are they getting the education that they need?

My answer is yes and no.  There are many features of the traditional law school curriculum that serve law students quite well in a rapidly changing world.  Legal analysis, a close reading of texts, clear writing and thinking, and an ability to discern good arguments from bad are all valuable skills and will continue to be so. Law schools (particularly through experiential education) also help students to develop essential law practice skills in the areas of fact investigation, negotiation, oral and written advocacy, document drafting, and client counseling.

These skills are important and necessary, but they are no longer sufficient.  If you think the Susskinds’ predictions are accurate, students should also be able to identify how technology and other innovative methods can be used to deliver legal services better, faster, and cheaper.  Put simply, students will still need to “think like a lawyer,” but they will need to “think like 21st century lawyers.”

What does this mean specifically?  The answer varies depending on the school, but at my own school (Suffolk), it means exposing students to concepts like legal project management and process improvement, legal design (accompanying story here), automated legal document assembly, expert system tools, electronic discovery, and other areas as well.  We’re also teaching students how to innovate the operations of a law practice to make legal services more affordable for currently underserved clients, and we are giving students paid opportunities to learn about new delivery options.  

We’re certainly not the only ones pushing the envelope.  A growing number of law schools (and universities) have developed an expertise in this area and have emphasized a range of related skills, such as legal analytics.  Here’s a partial list of such schools.  (Please feel free to email me I have overlooked a relevant program.)

Columbia Law School – Lawyering in the Digital Age Clinic

Duke University School of Law – Law Tech Lab

Georgetown University Law School – The Program in Legal Technologies

Harvard – Center on the Legal Profession and LawLab (housed at Harvard’s Berkman Center for Internet & Society, but with many collaborators)

Hofstra University School of Law – Law, Logic, and Technology Research Laboratory

IIT Chicago Kent College of Law – Center for Access to Justice & Technology and The Law Lab

University of Miami School of Law – Law Without Walls

MIT – Computational Law Research and Development

Michigan State University College of Law – Legal RnD

Northeastern University School of Law  – NuLawLab

Northern Kentucky University Chase College of Law – Lunsford Academy for Law, Business, and Technology

Northwestern Pritzker School of Law – Technology, Innovation, and Entrepreneurship Concentration

University of Pittsburgh School of Law – Innovation Practice Institute

Stanford – CodeX The Stanford Center for Legal Informatics and the Legal Design Lab

Suffolk University Law School – Institute on Law Practice Technology & Innovation and Concentration

Vanderbilt University Law School – Program on Law & Innovation

Vermont Law School – Center for Legal Innovation

These innovations are paying off.  Students are getting jobs that did not even exist a few years ago, such as in legal project management, knowledge engineering, and legal solutions architecting.  For example, when my law school graduated its first group of students with some coursework in these new areas, employers specifically reached out to recruit them. (See, e.g., here.)  Granted, this is hardly an empirical study (the sample size is still small), but the available evidence suggests that legal employers are increasingly looking for students who have learned the skills taught at the schools referenced above.

Anticipating Objections

One objection to updating the curriculum in the way that I have outlined here is that law schools should not try to teach all of the knowledge and skills that students need for professional success.  Legal education is premised on the idea that considerable learning takes place on the job, so one could argue that the new areas of study, even though important, should be learned later. 

I agree that considerable learning needs to take place on the job, but we should want our students to have learned enough in law school so that, when they see a particular problem or issue in practice, they have a reference point for how to deal with it.  They need to be able to “issue spot.”  The new skills and knowledge described above are simply giving students the ability to engage in a new kind of issue spotting.  That is, students should know these new concepts sufficiently well to identify when they can be deployed to deliver services more effectively and efficiently.

A more important reason to offer this kind of education in law school is that students will not necessarily develop the skills in practice.  Although the industry is rapidly evolving, many law school graduates will join practices where few people have these new skills.  Put another way, the knowledge that I have described is less likely to be learned on the job than traditional practice skills and doctrinal subjects, because the knowledge is so new and most lawyers are not expert in these areas.  In this sense, junior lawyers will not be learning these new concepts on the job; rather, they may be educating their superiors.  

The flipping of the traditional information flow has another benefit: it increases the relevance of junior lawyers.  At a time when the value of a young associate is increasingly questioned, law schools have an opportunity to give their graduates a knowledge base and skillset that clients increasingly demand and that most legal employers lack.  In short, teaching these new skills will position law schools and their graduates as leaders of a profession at the cusp of significant change.

A second possible objection to this new curriculum is that the skills will be quickly outdated.  This argument, however, proves too much.  In law school, we regularly teach students about doctrines that have changed or are likely to change.  When we teach an area of law (say an older, but now discarded, doctrine), we do so to convey both a conceptual point and a way to think about an issue.  In much the same way, teaching law practice technology and innovation is designed to help students think in new ways about legal services.  The technology will change, but the mindset will serve graduates well throughout their careers by giving them the conceptual tools they need to improve how legal services are delivered and accessed.  This will make them more competitive and better able to serve their clients and the public.  It is hard to think of a better reason to update the law school curriculum than that.

[Updated to include another school on the list.]

Posted by Andrew Perlman on February 21, 2017 at 08:10 AM | Permalink

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