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Monday, May 29, 2017

If Silicon Valley Re-Invented the Law School 

What would a Silicon Valley-inspired law school look like?  I ask because I have been spending the last few years studying disruptive technologies, and, I wondered – as a thought experiment – how Silicon Valley entrepreneurs might rethink how to teach law for the digital age.

Law schools are tradition-bound institutions. For decades, law school classes have been taught in a way that would at least be familiar to the students who went to law school in earlier generations.  Obviously, numerous innovations have occurred with the advent of clinical education, experiential opportunities, and clear advances in diversity, teaching methods, and some classroom technology.  But, at some basic core, the process of legal teaching and learning has remained relatively unchanged.  The books from which I teach look a lot like the textbooks I learned from, and the ones my parents, and grandfather learned from.

In other industries, disruption has occurred.  If you brought the highest tech worker from 1960 and brought them to a successful San Francisco tech office, with open spaces, pods, laptops, ping pong tables, free goodies, and a corporate mission to sell digital widgets globally, via the internet or the Internet of Things, it would not look at all familiar. Workspaces, work, and how we think about work has changed.

The San Francisco tech scene remains an outlier, of course, but that is my point.  I am not seeking to redesign all law schools, but to re-imagine one for the future.

And, I know there have been experiments around the edges.  Cornell Law School launched a new program on information and technology law in New York City.  Georgetown Law School teaches a joint practicum class with MIT on cutting edge issues in law and technology.  Stanford being Stanford has various projects and programs about legal technology.  And Harvard, Yale, Berkeley, NYU, and GW, among others have institutes devoted to new digital technologies.  But, I mean what if instead of adding to the existing curriculum, we completely disrupted it.

Imagine if we started from scratch, with Google/Apple/Facebook/Microsoft/Intel etc. each donating $100 million for this experiment in legal education.  The sky is the limit and all we need is the design.  What would you do?

I have some ideas, but thought I would open the areas of debate rather than narrowing them with my views.

  • How would we design the space? Would classrooms make sense?  Would labs, teams, or distance learning be a better model?  Should law teaching be designed to match a more collaborative process – problem solving, practical, creative, disruptive?
  • How much of the existing curriculum would remain? Obviously, students need to pass the Bar Exam, but what part of contracts, torts, criminal law, etc., could be changed?  Is it a change in emphasis or an entire rethinking of the curriculum? What other subjects or types of learning should be added to the core curriculum?  Do you add technological design elements? Practical engineering or computer/data science or coding classes?   
  • What kind of students would this law school attract? Engineers, computer scientists, data scientists, hackers, cybersecurity professionals, data theorists, entreprenuers etc.?  Would such a school expand the possible pool of potential lawyers?
  • Who would teach? How many law professors would be qualified to join this faculty?  How would hiring be different?
  • Would the goal be to teach lawyers for a new legal economy (which would include a disruption of the legal profession) or teach lawyers to be useful to tech companies and to shape technology policy and law?
  • Does the legal market need a Cal Tech or MIT of legal education?

These are some initial questions.  I welcome other questions, and any answers if anyone has thoughts on the subject.

Posted by Andrew Guthrie Ferguson on May 29, 2017 at 09:14 PM | Permalink

Comments

Andrew, let me push back on this. Why would we think Silicon Valley would be good at reinventing law school? Do we expect Silicon Valley to be good at reinventing art? Do we expect them to be good at reinventing religion? Or reinventing sports? It seems to me that we don't expect them to be good at those things: We realize that Silicon Valley does some things well but doesn't do other things well. Given that, I would first want to know why you think Silicon Valley would be good at reinventing law school. Only then could we consider how Silicon Valley would do so.

While I'm being contrarian, I'll also disagree with the claim that legal education hasn't changed much. It seems to me that the changes in legal education over the last 50 years or so are quite dramatic. Casebooks today are radically different than they use to be: What used to be just pure cases with no commentary is now mostly commentary and problems with a few cases. Every student has access to as many past outlines as they want. Classes are different: What used to be mostly Socratic teaching is now a wide mix of styles, ranging from pure lecture to group discussion. Paper and pen and newspaper have been replaced by laptops and the Internet. Clinics are now a vital part of law schools, as are seminar classes. Many classes in the curriculum weren't offered 50 years ago. And schools offer a wide range of services, from career counseling and mental health services to course selection help and advising, that mostly didn't exist 50 years ago. Those are pretty big changes, I think.

Posted by: Orin Kerr | May 30, 2017 12:47:59 AM

To push back on Professor Kerr's comments, to say that different casebooks with commentary has brought us to a modern era of legal education is a stretch; many teachers I had told us to simply ignore the commentary. And outlines were freely accessible, yes, but that didn't help with understanding the material largely, but rather with cramming toward the end of classes, and we were highly discouraged from using other students' outlines.

I have been to a few paralegal programs lately and have been amazed by the use of virtual interactive technology classrooms, to involve students at a remote classroom into the classroom where the teacher is. I'd love to see the ABA & states allow more use of asynchronous technology, or even just allow synchronous classes, like Syracuse was attempting with 2U before that was shelved. http://taxprof.typepad.com/taxprof_blog/2017/05/aba-rejects-2u-syracuse-proposed-hybrid-online-jd-program-while-other-syracuse-grad-programs-are-flo.html Let's start with something like that before reimagining everything.

Posted by: Christopher Jennison | May 30, 2017 6:32:32 AM

Silicon Valley doesn't "reinvent" institutions; it disrupts them. And we're already seeing how those trends play out. Not with a redesigned law school, but with alternative ways of meeting the needs law schools (and even lawyers) serve, much more flexibly, and almost certainly far more cheaply. What you're sketching is the design space within which a few elite and very well-funded law schools could try to survive the resulting hollowing out of the market by strongly differentiating themselves.

Posted by: James Grimmelmann | May 30, 2017 7:19:23 AM

Following up on both Orin's and James's comments, Silicon Valley companies spend gobs and gobs of other people's money "disrupting," and 9 out of 10 fail. Even some of the big hits still don't make enough money to pay the bills. High risk, high reward. If we translated that model to law schools, it might be great for the 10% lucky enough to be at the surviving school, which would likely be unknown ex ante. But give me several million dollars, and I'm happy to disrupt, I've got some ideas.

Posted by: Michael Risch | May 30, 2017 9:04:51 AM

Silicon Valley would basically end Law Schools and replace them with courses that would teach prospective lawyers two things:

1) What one needs to know to pass the bar.
2) How to be a lawyer.

One basically can look at the intensive coding boot camps out there to figure out what they would do. Students would be expected to learn the theoretical and historical foundations of the law on their own before attempting to gain entrance to the new law schools. School itself would take about 6 months, it would be much harder to get into than any law school except the T14. Being very linked with the legal industry rather than academia would make it much harder for schools that couldn't get students decent jobs to exist. There would be $0 of federal subsidy of any sort, but tuition for the whole thing would probably cost less than $20k. Schools would have enough faith in the earning potential of their students to let them finance that amount. Law Schools wouldn't produce an oversupply of jobless graduates.

In other words, the situation would be far improved. This wouldn't need some Silicon Valley disruptor to make happen. All that needs to happen is the following:

1) Federal Government needs to stop subsidies of any sort to Law Schools (including student loans).

2) States need to let anyone who wants to take the bar. The bar may need to be made a bit more difficult in some cases.

3) The ABA needs to be completely cut off from anything having to do with legal education.

That this situation would be far better than the current situation for everyone not currently in the rent-seeking legal education cartel is basically indisputable.

Posted by: Jack White | May 30, 2017 9:34:04 AM

Orin:

I completely agree with your second contrarian point (sorry not to be contrarian). Law schools have evolved over time, and all of the changes and innovations you mention are clear evidence, (evidence I would have included but then the entire post would have been too long and too filled with caveats). I would also acknowledge that in addition to the global changes to law schools you mention, programs like the one you and James have created are responding to the need to continue the evolution to incorporate new technologies and cybersecurity.

As to your first point of whether Silicon Valley folks (read here to symbolize technological innovation no matter the geographic location) are qualified to disrupt legal education, I am not sure they consider such limitations relevant. Entrepreneurs are disrupting policing practices without being police officers, fintech companies are reinventing financial services without being bankers, and most of us would say that 19 year old kids from Harvard are unqualified to change social media and global communication like Mark Zuckerberg did. And, I am not sure I see law (or teaching law) as the same as art, sports, or religion (there are elements of natural talent, faith, and spirt that one cannot simply teach). That said, the Silicon Valley mentality is trying to change the creation of art (there are entire digital arts schools and new media projects), sports (the business and science), and religious faith (some might argue that the god of technology is replacing old faiths).

My point was more about education – a field that I think can and will be disrupted. If you concede that there is a gap between the traditional law school curriculum and the needs of a digital future, one could either try to fill the gap (as is being done by some law schools now) or reimagine a law school to fit this precise problem. That second possibility is the thought experiment behind my post. What would you do with $500 million to recreate a law school to educate the world about the changes in computer, cyber, digital technologies? It may be the case that much of the curriculum would stay as is, which is its own insight about the value of the core legal education we have developed. It may be that the same curriculum would be integrated into a different format with a different focus. But, those choices are revealing. What we keep may be just as telling as what we change. And, someone might completely rethink the entire educational experience.

And, just to respond to a few of the other commentators, I am not proposing redesigning all law schools, but only one -- the Cal Tech/MIT of law or the equivalent.

Posted by: Andrew Ferguson | May 30, 2017 9:47:03 AM

Andrew writes: "If you concede that there is a gap between the traditional law school curriculum and the needs of a digital future, one could either try to fill the gap (as is being done by some law schools now) or reimagine a law school to fit this precise problem.

I confess I don't see that gap, though. Most of my scholarship is on that digital future, and I came to law school from graduate school in engineering (even in Silicon Valley!). But I don't think significant reforms are needed in legal education in response to the digital future. To be sure, every law school must have a course in Computer Crime Law, and any serious school will require use of the Kerr casebook and annual supplement. It's hard to imagine training lawyers for the 21st century without that course and specifically that book -- which must be bought new to get the full disruptive effect. But that's easy to do within the current curriculum, I think.

Posted by: Orin Kerr | May 30, 2017 10:41:45 AM

Provocation 1, somewhat sympathetic to and sort of in the spirit of the initial post, but not fully: https://ssrn.com/abstract=2412238.

Posted by: Michael Madison | May 31, 2017 10:15:35 PM

Provocation 2, somewhat sympathetic to and sort of in the spirit of Orin's comments, but not fully: http://madisonian.net/2017/05/01/the-future-of-law-teaching/

Posted by: Michael Madison | May 31, 2017 10:16:30 PM

Anyone interested in this thread would do themselves a huge favor and read Professor Madison's essay on the subject. I wish I could republish here as it is an incredibly thoughtful and thought provoking piece.

Posted by: Andrew Ferguson | May 31, 2017 10:36:59 PM

The FIRST question that needs to be answered is this. All else follows from it.

Is the purpose of law school to develop legal reasoning, analysis, and response when faced with new challenging factual situations --- OR IS IT TO --- stuff the student's mind with Black Letter law, rules, and procedures all of which it is the task of a successful lawyer to avoid or manipulate in order to arrange the most advantageous transaction for his client.

One is an exercise in thinking. The other is rote memorization.

Few lawyers can rally USE the law rather than follow it. The users get paid the big bucks (and will be hard to replace by a database).

Posted by: 30yearProf | Jun 10, 2017 12:42:17 PM

Technology almost by definition is change, and the more and the quicker change, the better. We don't want that with law. Law is supposed to be a fundamental component of social stability. The law should change only when it needs to, and the less and the slower change the better. So why does it make sense for quick change artists to be designing legal education?

Posted by: G Joubert | Jun 10, 2017 12:54:09 PM

I'm over arbitrarily glorifying Silicon Valley. They've been dominating most of my adult life and it's not clear that they've improved quality of life in any substantive way, just turned everyone and everything into a product and turned everyone into conformists. I'd rather they keep their mitts off of law school. Law school has its own problems that need solving, of course, but most of the mysticism of Silicon Valley comes from the fact they've convinced a lot of older people that what they do is so complicated and mysterious that it's indistinguishable from magic and so we might as well all just bow down and not ask questions.

Posted by: young curmudgeon | Jun 10, 2017 1:36:26 PM

Very interesting post. While not looking at the issue through the frame of what a "Silicon Valley Law School" might look like, I've tried to incorporate group project work, design thinking, interdisciplinary analysis, team building, student presentations and other, similar components in a course I call "Law and Social Innovation: Creative Problem Solving," described here:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2828107

Comments welcome.

Ray Brescia
Albany Law School

Posted by: Ray Brescia | Jun 10, 2017 3:41:16 PM

Were I Czar of All Law Licensing, I'd make three major structural changes, but they're not limited to what happens in law schools:

(1) Require, as part of the licensing process, at least a year's practice under close supervision of a licensed lawyer of recognized standing (see #3 below), in a fashion analogous to the internship that physicians must now successfully complete between medical school and licensing even as a general practitioner.

(2) Institute a national program of board certification -- not mandatory, but with additional privileges and a comprehensive national program of consumer education to accompany it -- again, similar to what is done in the medical profession. The Texas Board of Legal Specialization was a state pioneer in this, and I'm proud to be board certified by it in civil litigation -- it's by far my most meaningful credential, ahead of law school honors or law review or judicial clerkship -- but it's insufficiently ambitious and hasn't been adequately supported by consumer education efforts to help even the general public within Texas appreciate the significance of the certification.

(3) Split off adversary practice lawyers who wish to regularly appear in court for special certification or licensure, analogous to the traditional British system distinguishing between barristers and solicitors.

Posted by: William J Dyer | Jun 10, 2017 9:49:24 PM

(That parenthetical ought have said "(see #2 below)," sorry.)

Posted by: William J Dyer | Jun 10, 2017 9:50:25 PM

Orin hits the nail on the head--exactly right.

The spirit of this post reminds me of the British voters who wanted Brexit--who fantasized that all the parts of the EU that they disliked could be engineered away, and all the good retained in a new order. What they're rapidly finding out is that it's very hard to disaggregate institutions of governance.

And anyone with even the slightest familiarity with a growing critical literature on massive Silicon Valley firms could not write a post this utopian. Why assume Silicon Valley exists to improve the institution, when so much evidence indicates that firms like Uber are cesspools of sexism, exploitation, and ravenously self-serving lobbying?

Posted by: Tonkins Timmerman | Jun 11, 2017 3:25:25 PM

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