Monday, March 12, 2018

Legal Ed's Futures: No. 15

Education for Justice

In the first post of this symposium, Frank Pasquale invites us to “think more about the real barriers to access to justice.” He points to numerous obstacles that lie largely outside the control of legal educators: laws that favor large companies, lack of funding for public defenders, and low wages for public interest lawyers. I agree with Frank that these laws and conditions are real—and that they greatly constrain access to justice.

But Frank and I seem to part ways when it comes to the role of legal education in addressing these problems. He dismisses law school clinics and academic scholarship as fairly ineffectual counterpoints to the power of the corporation-driven, carceral state. I agree that clinics and scholars often are Davids confronting Goliath but, like the Biblical David, they sometimes win. More important, Frank overlooks the ways in which our traditional curriculum strengthens the Goliaths of the world. To put it bluntly: If law schools refuse to teach the skills that lawyers need to practice effectively, relying upon employers to teach those skills, who will be better equipped for battle? The lawyers who work for wealthy corporations and government? Or the ones who work for consumers, employees, small businesses, criminal defendants, and all of the other “David” clients?

Let me explore this point in the context of criminal justice, a field I know relatively well. Better funding for public defenders certainly would improve access to justice. But there is much that law schools could do without that funding. I outline here the flaws in our current curriculum; in my next post I’ll suggest some solutions.

  1. We educate prosecutors poorly. Prosecutors are the most powerful people in the criminal justice system: They have the power to dismiss charges, fashion plea deals, withhold evidence, and shape a defendant’s future. Prosecutors also hold a unique role among litigators: they are supposed to seek justice, rather than zealously advocate for a client.

Law schools do almost nothing to prepare prosecutors for this powerful, distinctive role. We steep future prosecutors, like the rest of their classmates, in the adversarial process. Throughout the curriculum, we urge them to “make the best case for their client.” We applaud arguments that push the boundaries of the law or skirt ethical constraints. Our focus on appellate cases ignores the intricacies of plea bargaining and the special responsibilities that prosecutors shoulder in that process. Even negotiation courses tend to focus on civil problems rather than criminal pleas.

We don’t teach law students much about interviewing witnesses; we certainly don’t teach them to interview with the skepticism a good prosecutor needs. Lessons in fact investigation and interacting with non-lawyers occupy marginal places in the curriculum. Nor do we provide the interdisciplinary courses that students need to become good prosecutors: classes on the causes and treatments for substance abuse, mental health problems, and domestic violence; courses on the limits of common forensic techniques; and cognitive science offerings that explore both the prevalence of unconscious bias and ways to fight that bias. Some schools offer some of these courses, but rarely in a systematic way that attracts and develops good prosecutors.

 

  1. We educate defense lawyers even more poorly. Our adversarial culture is appropriate for criminal defense lawyers: they should press zealously for their clients. But other parts of the curriculum fail these students. Future defense lawyers need courses on effective plea bargaining, fact investigation, witness interviewing, client counseling, mental health and substance abuse, forensic science, and bias even more than future prosecutors need those courses. Prosecutors have the full power of the state behind them; to counter that power, defense attorneys need the best preparation they can garner.

First-rate public defender offices teach many of these missing elements, but why should they bear that burden? We know that public defenders are overworked and underpaid: why should they spend their time and dollars on foundational education we could provide in law school? Many counties, moreover, lack organized public defender offices; in those counties, courts appoint counsel for indigent defendants. Too often, those lawyers are recent law school graduates who lack the skills they need for effective representation.

  1. We focus on felonies. The bar exam features more questions on homicide than any other crime—even though new lawyers rarely participate in homicide cases. Law schools, similarly, focus on murder, rape, armed robbery, and white collar felonies. Yet misdemeanor charges make up the bulk of criminal cases, and those are the crimes new lawyers will prosecute or defend. These crimes are far from trivial: misdemeanor convictions have a lasting impact on employment, housing, immigration status, eligibility for student loans, and other life essentials. These crimes also embody the systemic biases in our criminal justice system—often more clearly than felony prosecutions do.

 

Misdemeanors are not just “little felonies.” They involve different laws, different styles of plea bargaining, and more varied outcomes. A well prepared misdemeanor defense lawyer often spells the difference between a damaging conviction and a clean record. Our curriculum is topsy-turvy: We should prepare students to handle misdemeanors, then let them learn felony work in practice.

  1. We ignore the police. Several symposium participants have noted the growing number of workers who engage in law-related work without obtaining a JD or law license. Those workers are employed directly by their client (usually a business or government agency), which allows them to avoid restrictions on the unauthorized practice of law. Police officers count among these workers: they regularly apply legal principles to the facts of new cases. The police decide whether circumstances allow a warrantless search; they also decide whether the facts before them support an arrest. For felonies, the police sometimes consult prosecutors on these matters but in misdemeanor cases they act largely on their own. Indeed, in the two counties where I practice, the police even file the charging instrument for misdemeanors. A prosecutor can amend or dismiss the charges, but the arrest and initial charges remain a matter of public record.

 

Police officers, in other words, daily resolve the kind of questions we pose on law school exams—yet they lack all but the most basic legal training provided in police academies or undergraduate criminal justice courses. Why aren’t law schools more interested in how police officers are educated?

I’ll explore in my next post how law schools might tackle these problems. Education is powerful; if properly administered, it is our greatest weapon against injustice, poverty, and other social ills.

Deborah Jones Merritt (The Ohio State University Moritz College of Law)

Posted by Dan Rodriguez on March 12, 2018 at 03:57 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Futures of Legal Ed

We are one week into the March symposium on "the futures of legal education" and I hope that the various posts are generating interest and motivating thoughts among readers of this blog.  In the vein, I would like to urge you to send along posts with your own reflections.  I will not edit for content, but only for spelling.

The posts thus far been have eclectic and wide-ranging, but we would surely benefit from an even more diverse set of reflections and also of backgrounds.  I hope you will consider engaging actively with this big topic and I look forward to your posts.  You can send to me at daniel.rodriguez@law.northwestern.edu.

 

Posted by Dan Rodriguez on March 12, 2018 at 09:03 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 14

Modest Proposal #1

My first couple of posts have been about how we’re doing things at my school to deal with innovation and technology. I want to shift the focus and start to address the observation I made in my first post about how the institutional form of the law school is a path dependent accident. Specifically, I want to start looking at the structural inefficiencies of law schools, and how the path dependency has led to a mismatch between the social need for legal knowledge and the way we deliver it.

I want to make a number of modest proposals. These are “modest” in a somewhat-Swiftian sense: although I’m not advocating eating babies, these proposals are going to strike many as implausible, if not impossible. They all seek to change the value proposition for students attending law school, by making it cheaper and/or different.

Modest proposal #1:

A smart provost at a college/university that doesn’t have a law school should propose to the ABA that their university should be allowed to offer a Bachelor of Laws (LLB) leading to the practice of law. [1]

This idea seems so obvious, I feel that there must be a slew of reasons why it isn’t being done all across the States. The JD is a relatively recent phenomenon (https://asklib.law.harvard.edu/faq/115308) and I seem to recall reading that the main reason for the shift from the LLB to the JD in the late sixties was that entry in a grad degree guaranteed a Vietnam War draft deferral. My recollection here may well be wrong—I’m traveling at the moment, and don’t have access to the work I recall reading it in. Even if I’m wrong, it doesn’t change the fundamental point that although the regulators/accreditors may currently require a JD to be bar-eligible, there are good reasons to think that now may be the time to consider reintroducing the LLB to US legal education.

First off, the ABA/AALS/State Bar Associations are rightly concerned about the cost of law degrees, and they need to be seen to be doing something here. The fundamental problem with the JD degree isn’t (I think) the sticker cost, or the cost of delivery, or even its relevance to the legal service market—it’s the fact that it adds three unnecessary years to the value proposition for the higher educational journey of a law grad. It generally takes a minimum of seven years of instruction to be eligible to sit the bar exam, of which four years is utterly unrelated to law. It’s great that college grads with a BA in poly sci or economics or a BS majoring in biology have other skills and knowledge, and certainly it’s true that the college experience is a worthwhile rite of generational passage. But in an era when law grads can expect to carry anything from $100k to $300k in debt, we clearly need a better answer than “well, those four years of college weren’t a complete waste of time, Jenny did learn about sunk costs...”

The second reason that I think that this can work, is that it’s been working for ages in other jurisdictions. Essentially every other common law country makes do with the LLB, and these countries seem to have pretty decent legal systems and functional legal education systems. Places like South Africa, Hong Kong, Singapore, Malaysia, and Australia only require students to graduate with a 4 year LLB from an accredited school, before they can undertake the local equivalent of the bar exam. The UK is even more permissive, although its approach is too complicated to explain here. Australian law schools have, over the last ten years, introduced the JD, and begun to charge US prices for the privilege. But this is just because of the peculiar funding system for higher ed in Australia, which means that the schools with JDs can charge three times as much for essentially the same degree as the LLB.

Introducing an undergraduate law degree would cut three years of tuition off the cost of becoming a lawyer, without (it seems to me) affecting in any way the quality of lawyers it graduated or the integrity of the legal profession. Three times the average annual cost of college is a pretty significant amount of money that grads would save. We could expect a range of useful flow-on effects. Numerous underprivileged students to consider law school when they otherwise would dismiss the thought. With lower college/law school loan repayments, the cost of delivery of some legal services could well come down because grads wouldn’t be loading in their loan costs into their client bills . Etc etc.

Of course, in this era of closing law schools it would be a brave provost who suggests opening such a radical law school (or any law school). And there is still the small matter of the regulators like the ABA and AALS, who are going to be pretty seriously hard to convince to this way of thinking. But, actually, I think that these two problems are actually the best reasons for trying this. Disrupting the current status quo in US schools would be really easy, and the new program would be able to grab market share much, much faster than if the legal education system were functioning well. And there is some evidence that some regulators would be open to this, as we are already seeing a number of law schools getting ABA variances for things that would have been inconceivable just a few years ago.

This entry is already too long, so I’ll outline my next modest proposal in another post…

 

Dan Hunter (Swinburne, Australia)

---Notes---

[1] I suggest that this should happen at a university that doesn’t have a law school because this proposal is almost impossible to imagine at a university with a law school that offers the JD. The channel conflict and professorial agitation at an existing law school would almost certainly make this a non-starter.

Posted by Dan Rodriguez on March 12, 2018 at 08:56 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Saturday, March 10, 2018

Legal Ed's Futures: No. 13

I am excited to (however belatedly) join the conversation to which Professor Madison’s postings have so thoughtfully invited all of us.

Over the course of forthcoming posts, I hope to variously engage implications of the world’s growing complexity for the future of legal education; the need for experimentalism in legal education; the importance of law, regulation, and even “legal reasoning” for an ever-widening universe of non-lawyer professionals; the potential benefits of re-thinking the targets of faculty governance, and the place of leadership education in law schools – among other things.  Along the way, I may even try to make the case that we stand on the precipice of a “Golden Age” of legal education.

For the moment, though, let me offer two introductory points:

First, as my talk of a golden age for legal education suggests, I am deeply optimistic about our future.  There is much work to be done, and no assurance of success.  And only those prepared to innovate – sometimes in big ways – are likely to succeed.  For those that are prepared to do so, though, the fundamentals are not merely sound, but very promising.

Professor Madison’s postings, with what he himself describes as their “occasionally grim tone,” might be read to the contrary.  In point of fact, as he likewise highlights in his concluding paragraph, he too is “optimistic about the future.”  And for the same reason:  “I also believe that our collective power to shape our own futures – and that of law and the legal system – is immense.”

Which points to my second introductory offering: 

In his postings, Professor Madison invites us (all) to a kind of “distributed collaboration” model of shaping the future of legal education (and law and the legal system more generally).  As with Wikipedia, Linux, and other settings in which the wisdom of groups serves to generate value, he suggests in Part IV that “[i]f done well, imaginatively and carefully, then extending, distilling and combining conversations [regarding law and legal education] should lead not only to conceptual frameworks for action but also to actionable guidance itself, drawn from multiple perspectives and looking to multiple audiences.”

We have a tendency, as lawyers and perhaps especially as law professors, to reify the value of individual insight and expertise.  And hence to offer our analyses, views, and recommendations as finished products to be either embraced (ordinarily) or rejected (rarely, if ever).  Against that backdrop, Professor Madison’s invitation might offer the opportunity not only to achieve greater insight as to the future of legal education (as well as the “actionable guidance” he describes), but perhaps also to rethink the way we think as lawyers.  And thereby the value that we bring to our social, economic, and political life.  And perhaps even our future.

Robert Ahdieh (Emory)

Posted by Dan Rodriguez on March 10, 2018 at 10:22 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Friday, March 09, 2018

Legal Ed's Futures: No. 12

Outrunning Niels

A range of commentators in this symposium have identified tech as an important driving force in the changes in legal education. It’s not hard to see that if we’re to make law school more relevant to our students, and if we are serious about making our graduates capable of operating in a fast-changing legal services marketplace, we clearly need to do something about the technology gap in law school education. But what should we do?

One response is to teach law students how to code. Two approaches to this have emerged in law schools. The first—exemplified by the excellent subject called “Computer Programming for Lawyers” run by Paul Ohm at Georgetown (https://cp4l.org/)—is a kind-of standard comp sci “Intro to Programming 101” class, but with a legal tinge. (Not just regular expressions, but regular expressions in legal search, etc) This approach is useful in imparting some new knowledge to law students, gives them a tiny bit of coding skill, and maybe changes their relationship with their computer a little. This approach has utility, I think, in the same way that a really good “Law & Literature” class has utility, providing the student with a bit of diversity of outlook and a welcome break from all those endless rules and cases that they have to study in their black letter classes.

Another approach is to give lawyers some training in how to translate legal rules into an expert system shell or how one can pour legal cases into a neural net simulator. I ran this kind of AI & Law class at Melbourne University Law School and then Chicago-Kent, around 20 years ago. The newer iterations of this sort of approach are exemplified in the Iron Tech/Apps for Justice classes that David Johnson pioneered at the center that I ran at New York Law School about ten years ago, which then found its way to Georgetown, Melbourne Uni, and places in between. This sort of course is useful to teach translational skills—from legal code into computer code—that are of significant value for the law grads who want to work in knowledge management departments or want to code expert systems.

While these approaches create great marketing copy, and are useful in the limited ways I mention above, they are hardly the panacea for students who are graduating into the new legal services marketplace. It is definitely a good thing for a law grad to know how to do code in Python or Neota (or, even better, in R), but that’s like saying it’s a good thing for a student to have taken a negotiation class or been on moot court. Valuable skills, to be sure, but hardly game-changers. I don’t think that one elective in programming is the solution to the problem the students face in navigating the new normal of a legal profession being eaten away at all sides. Also, because it’s an elective in an otherwise traditional JD, only a small number of self-selecting students will ever do it.

What, then, should a law school do?

Our approach has three layers. At the bottom, every student is exposed to (1) the concept of an innovation mindset, and (2) some applications of technology in legal practice. The first aspect focuses them on understanding how careers in law look these days, and seeks to give them some skills around managing their work life in a time of ruthless change. The second aspect is much more practical: in Contract Law we teach them about smart contracts and the blockchain, in Civ Pro we show them e-discovery and explain how predictive coding and AI will affect their early working life as litigators overseeing document review, and so on. These aren’t much, but they provide a foundation for the deeper layers. And they also mean that every student has some basic context of how technology and change will affect them, even if they choose to focus on other aspects or use their law degree for other purposes.

At the next level up, we give students a small range of electives that are focused on technology and innovation within legal services. This means that we have Legal Tech & Innovation units that focus on legal translational work, coding legal materials into computer systems. Students gain familiarity with AI & law, and with inference engines and representational formalisms. We also have a Business of Law class, that is aimed at explaining the structural changes that are going on in the legal profession, so that they know not only the basics of legal practice—can use an LPMS, understand how legal partnerships work, and why they are a poor business structure if you want effective investment in the future, etc—but they also understand the big structural changes that will affect them—the development of the “legal operative”, how managed legal services works, what LPO (legal process outsourcing) to South Africa and India means for them, the rise of private litigation funding firms and its effect on the legal system, and so on. About 30% of our cohort will undertake these sorts of opportunities.

The final layer (which suits about 10% of the class) is a Y Combinator-like incubator/accelerator for law firms, courts, and non-profits. The insight is to have a hosted innovation lab that generates intrapreneurial innovation within the firm/court/agency and which gives our students experience in managing and developing legal innovation. We have students work with a legal technologist, a startup mentor, and faculty from our design school to take the client from ideation through to product/demo. Students work as members of a team, being involved in every stage of the innovation cycle. They get exposed to design thinking, agile management techniques, lean canvas experimentation, coding, and the business challenges of innovating in law. They also typically build proof-of-concept computer systems for the legal client.

Is this the best (or only) way to provide students with the skills to succeed in the new legal environment? Of course not. But at the end of the day, it doesn’t have to be the best of all possible worlds. My approach is structured around the old joke about Albert Einstein and Niels Bohr, who find themselves stalked by a lion. When Albert pulls out his running shoes, Niels says, “Don’t be stupid, Albert, you can’t run faster than a lion.” Albert replies, “I don’t have to run faster than the lion, Niels. Just faster than you.” [1]

My students don’t have to be the platonic ideal of the graduates for the legal future. They just need to be better than grads from my competitors.

And, I’m proud to say, they are.

 

Dan Hunter (Swinburne Australia)

--Notes—

[1] I have heard this joke told in many different forms, sometimes featuring these two eminent physicists, sometimes just with generic hikers, sometimes with a bear, a tiger, and a lion. I have no idea why the joke is funnier with a lion, Einstein, and Bohr as the protagonists. But it is.

Posted by Dan Rodriguez on March 9, 2018 at 09:28 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Thursday, March 08, 2018

Legal Ed's Futures: No. 11

Across the discipline of legal education and across law schools, and without the blessing of appointed and delegated leaders, legal educators should act on their power to define, advance, and implement their own visions of law and legal education, in ways that make the changing conditions of the legal profession and its existing institutions relevant but not determinative.

--Mike Madison

In this post, I am conscious of not wanting to author a diatribe in the style of the Unabomber manifesto (read: “The Industrial Revolution and its consequences have been a disaster for the human race.”).  Instead, I’ll offer a more tempered version:  The tradition of legal education and its consequences have created a crisis for civil society.

Those of us in legal education and the legal services industry have for 150 years made legal education a precious commodity.  Jointly and severally, we have isolated the construction, interpretation, and operation of law away from its subjects and objects.  And we have done so at our peril. 

When I was a 1L, a professor remarked to my class that we would now be popular at cocktail parties.  (In retrospect, this could not have been farther from the truth—no matter how fascinating I thought I was, nothing screams “buzzkill” like Palsgraf and the Rule Against Perpetuities.)  But, the implication was that we would now hold the key to answer many questions that plague “regular people.”  While at the time it was heartening to think that I might be popular at cocktail parties, there was something inherently disturbing about the dynamic.  The function of legal education to create those in-the-know (and, consequently, those “out-of-the-know”).  The haves and have-nots. 

The haves and have-nots certainly factor into access to legal services, as well.  This is even true in BigLaw, outside of most access to justice conversations, where I worked in the late 1990s and early 2000s.  Through a series of mergers and acquisitions and the building of a global empire, local clients dropped off, no longer able to afford the services we offered.  Partners who relied on a local client base for business development struggled to find a new direction.

The intersection of the problems in legal education and the legal services industry intersect in the following illustration: A few years ago, I taught a class called Complex IP Problems.  Throughout the semester I brought in a visual artist, an author, the owner of a film production studio, an entrepreneur, and an inventor, all to talk about particular IP problems they had.  Despite the differences in background and interest, each of the class visitors had one surprising thing in common: None of them had consulted a lawyer to help them navigate their issues.  When the students interviewed them, they said things like, “Who can afford a lawyer?” and “Lawyers are the ‘no’ people.”

The market has responded to the precious nature of the law certification, and to the inflation of billing rates for lawyers, by creating an entire market for professions that are law-related but do not require a JD.  The single biggest growth area for law jobs is in jobs that do not require a JD.  A search on LinkedIn for contract manager in the US, a position that involves drafting, negotiating, and interpreting contracts but does not typically require a JD, leads to over 19,000 job postings. 

In his framing post, Mike Madison lists many of the silos we see within legal education these days.  But I want to go a step farther and suggest that the entirety of legal education has been its own silo—an ivory tower, if we want to make the silo fancy.  By keeping legal education for a precious few, and refusing to adapt like, say, the medical industry has, to a variety of roles for different types of legal professionals, we have become stuck in that tower, and the world has started to work around us.

It is a deep irony that while law schools have been isolated from higher education generally either de jure or de facto, law is inherently interdisciplinary.  There are legal issues, consequences, and problems, associated with every area of study.  Yet, a student earning a 4-year university degree may be required to take classes in language, writing, sciences, and math, but may never have any exposure to the legal frameworks and principles within which she lives her life every day.  It is time that law schools recognize that legal education for the people does not threaten the JD—rather, it places it front and center of a series of concentric circles emanating outward.  As leaders in legal education, we must recognize the widespread need for that education.  We must work to offer it to markets both broad and deep.  Legal education is critical for the functioning of civil society, and we must embrace that, or we all lose.  Rapunzel, Rapunzel, let down your hair.

Megan Carpenter (New Hampshire)

Posted by Dan Rodriguez on March 8, 2018 at 12:09 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 10

Growing The Scope Of What We Do

I am grateful for the opportunity to be part of this important conversation.  I especially appreciate the framing - initiating a dialogue as a predicate step for future developments in legal education.  In all our busy lives, I believe we are intensely interested and motivated to work hard on behalf of our students and the profession. But it is useful to force ourselves on occasion to break out of the necessary day-to-day effort on immediate outcomes and pause for a moment to set guideposts for the industry’s future.

What questions do we need to think about in assessing the “futures” of the legal profession?  To open, a few:

Is the profession changing? 

Sure – it has changed before, and will always change.  The harder question is if there are trends that demand particular attention.  Here, I think the answer is clearly yes.

By even casual observation, it is clear that technology is beginning to set its grapple hooks into the business of law.  When I was a baby lawyer, I cut my teeth on discovery, often reviewing lots of documents in windowless rooms.  Now electronic discovery is now being handled in part by machine learning algorithms, which do a much better and more cost-effective job than I ever did.   JP Morgan, for example, has developed a machine learning system called COIN (Contract Intelligence), that purports to reduce to a matter of seconds work that would have taken lawyers 360,000 hours to complete.  A teenager in London created a chatbot lawyer that effortlessly overturned 160,000 parking tickets in New York and London, saving pleaders more than $4 million in fines.  LegalZoom has incorporated more than 1 million businesses through a simple online form, work that used to be the first introduction of a company to an attorney.

Similarly, as other contributors have noted, we have an access to justice crisis in this country.  People who desperately need lawyers cannot afford them.  Three quarters of those who go into state courts do so unrepresented.  Here in California, there is 1 legal aid lawyer for approximately every 20,000 eligible poor people.  People who do not have lawyers will have worse outcomes, and this undermines the legitimacy of our most prized possession, the rule of law.

Does legal education need to adapt?

Also, I believe, an easy “yes.”  We have adapted in the past, and stand poised for even greater innovation. 

An important first step is taking stock of our core values.  American legal education has excelled by teaching a mode of analysis and dispute resolution that works in the world, and I do not see that core mission becoming irrelevant in my professional lifetime.  Law schools deliver some tools and skills that are and will remain essential in any future still bound by law and legal norms, and it is dangerous to neglect that core.  But we ignore the trends above, and others other participants have framed, at our peril.  And although innovation will be non-linear and responses will be varied, I want to suggest a unifying theme:

We must enlarge the scope of what we do to become relevant to a broader universe of people in a complex world and changing profession.

This does not mean enlarging JD enrollments – indeed most law schools (including mine) have gone in the opposite direction.  But we have to do more, both within the JD program and outside of it. 

Inside the JD program, we need to train lawyers that have competencies to participate in and even guide the technological developments of the future.  As we know our students will have many jobs over the course of their careers (including some that do not exist yet), we need to invest in treating law school as an exercise in fostering life-long learning.  And a careful examination of access to justice needs to be an essential part of any JD curriculum – we must not only teach, but take advantage of the crucial aspect of professional formation to inspire our students to serve the most vulnerable over the course of their careers.  To accomplish these goals, we need more advanced partnerships – with employers of the future, with non-profit and governmental entities seeking to create a more just world.  We cannot meet these challenges inside our walls.

Outside the JD program, the challenges are even more visible but the opportunities more exciting.  Many schools have already broadened their relevance by taking what we do best as legal educators to new audiences, evidenced in the growth of master’s degrees and LLM programs (conceding that motivation for these have been declining JD enrollments and need to new revenue sources outside the JD program).  But more can and must be done.  Perhaps one day law schools will not be viewed merely as an institution granting JDs after 3 years of study, but rather as an essential core curriculum for professionals in any discipline.  And as more professionals interact with the legal system, we can make people better clients and consumers of legal services.  We will have to grapple with what advantages and capabilities we have in a world of unbundled legal services and where more and more people seek knowledge outside of the world of the traditional university.

I will expand on these themes, and discuss in more depth specific innovations, in future posts.

Michael Waterstone (Loyola - Los Angeles)

Posted by Dan Rodriguez on March 8, 2018 at 10:21 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 9

Let a Thousand (or at least a Hundred or More) Flowers Bloom!

This virtual symposium – and a great deal of writing about legal education – offers readers a lot of really good ideas about innovations in legal education, or extensions of nascent programs already in place somewhere. Indeed, maybe too many in one quite specific sense: It is unimaginable that any single law school will – or would be able to – adopt all or even more than a handful of the ideas.

That’s not a counsel of despair, though. Rather, it’s an argument in favor of institutional pluralism in legal education – an argument that conveniently dovetails with the observation that institutional pluralism exists and isn’t going to go away.

Institutional pluralism means that each law school will choose its own path. That path will be marked out in a complex process. A dynamic new dean will come in supporting some innovations. The dean will be supported by some members of the faculty, who see the institution as stagnating or failing to adapt to new market conditions, and opposed by others who see the specific innovations as inferior responses to new conditions than other innovations would be. The central university (“the provost”) will support the new dean or be skeptical about the initiatives. Alumni and students will weigh in, offering their views about which features of the old program should be preserved, which should be abandoned. And so on ….

Institutional leadership at the law school and university levels, faculty, student, and alumni “politics” – all will play out differently at different institutions, even at institutions with roughly the same location in the market for legal education. And of course that’s another feature of institutional pluralism: The market for legal education is segmented in ways that we all recognize but often fail to take into account when we discuss “legal education” tout court.

The inevitable effect is that good ideas will spread erratically and penetrate legal education incompletely. Some law schools will adopt some good ideas but reject others; others will take up ideas rejected elsewhere and ignore others adopted by their peers.

An optimistic social Darwinist or free-marketeer would say (hope?) that all will work out fine in the end. The ideas that turn out to work well will spread and those that don’t work will drop out of the competition. I’m not in either of those camps, in part because I think that the “environmental” conditions for legal education change too rapidly for evolutionary adaptation – a not terribly nimble process – to work well. Rather, we’re going to see repeated episodes of innovation, change, success and failure – not even cycles but simply episodes.

And, again, that’s either all to the good or a matter of indifference. All to the good because there’s a decent normative case for institutional pluralism (it would be bad were all law schools with religious affiliations to come to be indistinguishable from deeply secular law schools).[1] Or a matter of indifference because in an institutionally pluralist world, lots of people (law students, faculty members, those in the general society) will be able to get a lot of what they value from legal education even if no one gets everything she wants from any specific law school.

Mark Tushnet (Harvard)

[1] In an attempt to preempt some kinds of criticism (of the Association of American Law Schools among others), I note that the words “all” and “indistinguishable” carry a lot of weight in my formulation.

Posted by Dan Rodriguez on March 8, 2018 at 09:42 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Wednesday, March 07, 2018

Legal Ed's Futures: No. 8

Legal Education for a Changing Society

 

I am grateful to Dan Rodriguez for organizing and Mike Madison for inspiring this virtual symposium and including me. The very choice to make this symposium virtual embodies the important issue we will be reflecting on this month—how should legal education and scholarship evolve synergistically with our changing society?

As a first-year dean at a young law school within a public, land-grant Research 1 university (Penn State Law in University Park, PA), I am excited to have a chance to dialogue with this group of thought leaders and other thought leaders who join the conversation about the answers to this question.  I chose to become a dean because I hope to help us make progress on legal education for a changing society at my institution and beyond.

We are at a moment of profound social change in which technology, globalization and the need for cross-cutting knowledge are transforming the practice of law and the nature of legal services and information. It is crucial for law schools to acknowledge that change, and not simply respond, but lead in the face of it. Drawing from the themes of Mike’s posts and those so far, my first post will highlight four issues I would like to explore in more depth (among others) over the course of our conversation.

  • Transforming Legal Job Markets

I often say that as professional schools, law schools have an ethical obligation to prepare our students for their licensing exam and to help them launch fulfilling careers. But as Mike and others have detailed, career paths are rapidly evolving. Law firm jobs have not fully recovered post-recession and public interest jobs have remained a stable percentage. But “JD Advantage” jobs—those for which a law degree is useful but not required—have grown 14% over the last several years and likely will continue to grow.  While some of these jobs may not be positive pathways to fulfilling careers, others are and the preparation for them may look different than for traditional legal practice jobs.

Beyond the curricular implications of this transition that I hope we will discuss over the course of this symposium, I think it also needs to guide an evolving approach to career services.  At Penn State Law, we are examining how we can work more effectively in an individualized way with students to help support multiple kinds of career paths in a wide range of locations. An important piece of that is our initiative to provide comprehensive mentoring that begins at admissions.  I think that mentoring plays a critical role in supporting our students in a changing society.

  • Technology

The pace of technological change and its implications for law are staggering. I knew that before I started as a dean, but my conversations with practitioners and corporate leaders these last few months have reinforced that the pace of change is even faster than I had imagined. Artificial intelligence and machine learning, immersive technology, 3-D printing, blockchain, and technologies I am not even envisioning yet are both transforming legal practice and raising important legal issues that existing frameworks are not prepared to address. Online education and distance learning technology can play important roles in allowing us to innovate pedagogically and in how we support access to justice.

I look forward to learning from all of you about cutting-edge efforts in the legal-tech space. At Penn State Law, we have a major technology initiative that includes creating modular online courses for nonlawyers (with a shout-out to symposium participant Michele Pistone for inspiring this idea); exploring innovative uses of our advanced distance learning technology (externships everywhere, virtual conference, new partnerships); and launching a Legal-Tech Virtual Lab.

  • Interdisciplinary Partnerships

Law schools’ place in their universities (for those that aren’t stand-alone) has long been complex. A dichotomy has often been posed between practical education preparing students for a licensed profession and interdisciplinary scholarship and collaboration. However, in my view, building bridges between law and other disciplines is crucial to preparing our students for fulfilling careers and solving the world’s important problems. My conversations with practitioners and business leaders have only reinforced my sense that our next generation needs cross-cutting knowledge to lead, particularly at the interface of law with STEM.

 I am interested in perspectives on how this can be done well. At Penn State Law, one of our great assets is being on Penn State’s University Park campus and having the chance to collaborate across our colleges and campuses. These partnerships are crucial to the Legal-Tech Virtual Lab, major new centers we are launching in energy and security, our innovative approach to experiential education, and our collaborations in health, entrepreneurship, and engineering (just to name a few). I anticipate these partnerships not only producing cutting-edge research, but also practically preparing Penn State students to lead.

  • Leadership

I agree with Mike for the need for bottom-up efforts and believe deeply in collaborative governance. But I also want to reinforce that leadership matters and that we need talented innovators to lean in and lead. I was a reluctant dean candidate not simply because I needed to be convinced that I could contribute as much in this role—I also had decided I was not qualified.

I worry that many potential leaders, particularly women and people of color, opt themselves out for this reason. I have been going around the country sharing my story and encouraging people who are interested in leadership, but worry they are unqualified, to talk confidentially with me. I have been simultaneously heartened and concerned by the strength of the response—excited to talk with these potential new leaders and worried about how many talented leaders we lose. 

I reiterate an open invitation here to anyone (including those who are very junior) who thinks he or she might be interested in being a dean to reach out to me, hmo8@psu.edu.  I am happy to dialogue with you about your ideas and your concerns, and about how to gain the experiences that help prepare you for this role.

Hari Osofsky (Penn St.--University Park)

Posted by Dan Rodriguez on March 7, 2018 at 03:31 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 7

A Fine Mess

With all the necessary thanks to the editors of Prawfsblawg and to Dan R and Mike M for organizing this symposium on the future of legal education, let me begin by making two obvious observations:

  1. The way that law schools are structured is a path-dependent accident; and
  2. The future of the legal services market doesn’t look like the past of the legal profession.

These two aspects are self-evident, and my colleagues in this virtual symposium will, no doubt, pull these ideas apart better than me. But I wanted to state them at the beginning of my posts in this symposium, because they are the twin suns by which I am going to navigate —my North and South Stars, if you will. Indeed, they are the two fixed points that have defined my current job.

I’m the foundation dean of a new law school, on the other side of the world. In a period when US law schools are closing, it might seem that I don’t have much to say about the future of US legal education. But the structural problems that the US system “enjoys” are the same ones that we enjoy here in Australia. (And I spent thirteen years working in the States, at Wharton and New York Law School, so I know the US system really well.) And I am more aware of these problems than most: When I agreed to start a new law school four years ago, there were already seven other law schools in Melbourne and there was a huge oversupply of law graduates. According to some commentators, as many law students graduate each year in Australia as there are practising lawyers. So, when I took on the job of foundation dean, literally no-one said “ah, just what we need, another law school.”

But this is a blessing, and not a curse. It’s great being a late entrant to a market (the runt of the litter, as I sometimes describe us): You have to work harder to get enough to eat, and literally no-one will cut you a break. This concentrates the mind wonderfully.

My background is computer science and artificial intelligence, and my university is one that has “Of Technology” in its formal title. (We’re like MIT and Caltech, just without any of the money or prestige or Nobel laureates.) Thus, the plan when we started the law school was to have technology and intellectual property in the core of our degree. I started with the idea that every one of my students would want to be like me, moving back-and-forth across the boundary between technology and law, for the course of their careers.  Surely, this is what a new, vibrant, technology-focused law school really needs to provide to its students?

Well, no.

The thing of it is that students come to law school for a range of reasons—and exactly none of them is because they were fantastic at math or computers at school or college, and so decided that the perfect use of their STEMM talents was to become a lawyer. I quickly discovered that most of my students didn’t want to study technology, few of them had much of an idea about legal practice management systems or predictive coding, and none of them saw themselves as primarily technologists.

At the same time, I was spending a lot of time talking to the legal profession and the judiciary and various other players in the law-space, in an effort to introduce them to my new school, and also to get an idea of how various legal actors saw technology, and what knowledge, skills and dispositions they wanted my graduates to have. I discovered that tech doesn’t have much of a foothold in the profession, and the real motivating force is change. Or, more specifically, fear of change. They see a range of “innovations” on the horizon, and they have no way of responding meaningfully to these changes. The legal profession doesn’t actually innovate, not the way that Silicon Valley and Shenzen and Tel Aviv do. There we see endless streams of 26 year olds, backed by VC or PE money, anxious to move fast and break things—things like the legal system. In law, we don’t see this so much. I often show two slides in my presentations about legal innovation. The first slide shows a depiction of a 17th C hospital, contrasted with a 21st C hospital. They are unrecognizably different. The next slide shows a picture of a 17th C court and a 21st C court. The main difference here is that the 21st C court doesn’t feature as many horsehair wigs.

Everyone I spoke with in the initial few years agreed that the legal profession is going to change. The most foresighted commentators recognized that the provision of legal services in the future will not be confined to lawyers from an anachronistic legal profession—instead, practising law will include new approaches and new entities, from technology companies delivering document generation systems and artificially-intelligent legal support systems, to multi-disciplinary practices providing a combination of professional services that defy 19th century conventions. Offshoring firms will be widespread, delivering technologically-mediated legal solutions across the globe, using the cheapest-and-best legal operators. Large companies will adopt a managed-service approach for their legal needs, an approach that doesn’t necessarily involve the law firm, or even lawyers.

Against this reality, law schools still look like something out of the early-20th century. They teach an old-fashioned curriculum in an old-fashioned way. They are extremely conservative, focusing on the transmission of legal content modelled on established law schools from the 19th or early 20th centuries, in order to appear “rigorous” and “professional.” Apart from some worthy experiments undertaken by motivated individual academics, the most significant innovations within law schools in the last twenty years are: (1) a greater commitment to skills; and (2) some limited use of online teaching. (Although, of course, US schools are waaaaaaaay behind on this front. Thanks, ABA.) As for involving technology in the curriculum, schools rarely commit resources to this arena, preferring instead to engage in a kind of innovation cabaret, creating media-friendly events like two day “legal hackathons,” or offering vendor-sponsored coding electives that provide no long-term value to law students.

So, this is the reality we face, or specifically what I face as the dean of a new school. This reality will form the background to what I want to talk about in subsequent posts. I want to focus on the obvious challenges that confront legal education globally, and discuss how we have approached these challenges/opportunities at my law school. I’ll focus on the two observations I opened this post with, and will chat about three main challenges to the legal profession and the law schools that serve it:

  1. The development of legal technology (and, in time, artificial intelligence systems) that supplant the special skills of legal graduates;
  2. The likelihood of systemic casualization of the legal profession, along with the increased cost of delivery of legal education; and
  3. The rise of transnational lawyering, where low-cost providers of legal services will be able to market directly into traditionally-protected high-cost and high-value jurisdictions.

Along the way, I plan on discussing how artificial intelligence actually works (and, as a result, which parts of the profession are going to die), why “programming for lawyers” electives aren’t a good answer to the question “what is to be done?”, and I’ll make some modest proposals about how US law schools can reduce the cost of delivery of legal educations. Maybe to zero…

Thanks for having me along for the ride.

Dan Hunter (Swinburne, Australia)

Posted by Dan Rodriguez on March 7, 2018 at 09:51 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 6

As Michael “imagin[es] the future” of legal education, he does a great job imaging varying paths that the future might take.  I want to suggest that, in every case Michael presents, the most likely future path is the most pessimistic one. 

Law school culture is very strong.  As Michael notes, we basically still reside in the institution created by Langdell a century and a half ago.  That kind of institutional stability only happens when a strong institutional culture exists.  Now, as Michael also (correctly) notes, we live in a time when the necessity for change is “urgent.”  Who are the people who are going to act urgently to bring about this change?  Could it be the very same people who are the products of a strong culture of conformity and statis?  The possibility is extremely remote, and we would recognize it as such in almost any other context. 

In my view, law schools are unlikely to be up to the challenge of effecting necessary change absent a deliberate choice to hire people who provide some strong indication that they both disagree with mayor aspects of law school culture and appear willing to do something about it.  As they say in Washington, D.C. “personnel is policy.” I concede that my remedy is an unnatural one, for organizational cultures exist in order to replicate themselves.  The prevailing law school culture today highly favors the same qualifications it did twenty years ago, and thirty years ago, and forty years ago, and on and on (law review membership, prestigious clerkship, highly ranked law school and high class rank).  But persons with these qualifications are the very people who are most likely to find comfort in the existing system – after all, the existing system was made by and for people just like them.  Go ahead and hire Supreme Court clerks if you like, but only those willing to be, so to speak, “traitors to their class.”  Otherwise, find some less credentialed “rebels” instead.  If we really believe change is urgent, we have no other choice.  Only “traitors” and “rebels” will provide the ideas and energy needed to act urgently to overcome the inertia of the prevailing law school culture

Michele Pistone (Villanova)

Posted by Dan Rodriguez on March 7, 2018 at 08:57 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Tuesday, March 06, 2018

Legal Ed's Futures: No. 5

There are many promising ideas and invitations in Professor Madison’s recent postings about law’s future(s).  While continuing to appreciate the many and varied contributions that U.S. law schools make to law and justice, I share Professor Madison’s view that there is more we can do to better serve society.  Changes in the legal profession and broader challenges to law’s role in society are indeed upon us; the question is not so much whether those will continue but whether legal educators will participate as well as we might in steering toward positive directions.

To do so, we will need to embrace a refreshing aspect of the conversation Professor Madison has opened:  recognizing the complexity of the task of meaningful “constitutional” reform.  Many current reform efforts and conversations have failed to confront this complexity and, as a result, have been and are unlikely to be up to the task.  For instance, neither alone nor together are changes (or proposed changes) such as the following likely to accomplish much to celebrate:  e.g.,

  • teaching law students coding skills;
  • adding a few more required “skills” credits;
  • adding a new Leg/Reg (or any other single) required course;
  • recruiting more STEM students;
  • using a different or no admission test;
  • reducing ABA accreditation to narrow outcome measures such as bar pass rates;
  • or changing the credit allocation in first-year courses (again!).

To address wide justice gaps, keep up with technological innovations, and account for an increasingly global marketplace for all products and services, including law, changes will indeed need to be more constitutional in nature.  That does not mean that there are not strong aspects of our current system that should be retained.  But while we may all agree that we don’t want to toss the proverbial baby with the bathwater, we may not agree on which is which.  Complexity can be, well, frustratingly complex.  With that in view, we must start somewhere, so in the spirit of beginnings, I offer the following initial ideas (in briefest outline) for reform that might move us more toward the nature of change Professor Madison contemplates:

  1. Reframe legal education’s focus from educating lawyers to teaching law more broadly. This would de-center the JD focus in favor of a wider suite of degree and credential offerings along the entire educational spectrum and would also better accommodate the many students who use their legal education to advance careers outside of law practice.
  2. Refocus state bar organizations on professional development and move licensing to the national level; permit licensing of a wider range of legal services providers; require licensing processes to meet best practices in the assessment industry.
  3. Restructure university school/college organization to unite fields that would benefit intellectually from closer association, to provide more diverse revenue bases to support overall quality, and to better build the pipeline of talent for those fields (e.g., law, public policy/affairs, government/governance, economics, political science, criminal justice, international relations/affairs).
  4. Focus on fundamental skills and competencies required for success in these fields that will stand the test of continued advances in machine learning (e.g., critical and creative thinking, complex problem solving, compassion, resilience, teamwork) and align admission requirements, program expectations, and licensing standards with assessment of and learning in those skills and competencies.
  5. Encourage formation of the legal equivalent of “teaching hospitals” at major universities to recognize that legal services are likewise critical to the health of people and society.
  6. Redesign the role of law faculty so that duties include serving clients (defined broadly), educating students, and improving law through scholarship and research.
  7. Refocus government and foundation funding of academic research to include law and justice on equal footing with scientific and medical research.
  8. Redesign an accrediting system so that instead of one category of “ABA-Approved” there are multiple designations that convey meaningful differences in quality and mission to guide the public and institutional design.

These are surely not the only areas that need attention; I’ve confined my list to some most directly related to legal education.  In follow up posts, I’ll address ideas for change that reach outside of legal education to law more generally, including the structure of law practice, judicial appointments, funding for legal services, and legal technology.

Kellye Testy (Law School Admissions Council; University of Washington)

Posted by Dan Rodriguez on March 6, 2018 at 11:06 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 4

How interesting for a symposium, and a virtual one at that, to be christened with calls to action.  But thanks to Mike Madison for encouraging us not just to expound, the usual focal point of symposia, but to act, for we in legal education should be ready for action.  There is much to be done.  I am reminded that here in North Carolina, our largest public university has adopted the mantra of “think and do,” a legacy of one of North Carolina State University’s most illustrious graduates, the former Governor James B. Hunt, Jr., known for his dedication to public education as the great equalizer.

With the guideposts of a call to action and a local educational focus on thinking and doing, I note that we as legal educators have spent much time recently thinking and expounding about our enterprise.  Indeed, the cottage industry that has arisen over the critique of legal education has spawned a robust debate over the focus and value of law school while contributing to a literature that need not be recited or repeated here.  Suffice it to say that the critics and supporters of what we do as legal educators are many and varied, bringing a passion to our work that informs the thinking about what we do, what we should do and how we should do it. 

This conversation of course is not limited to individual administrators, teachers, scholars and popular commentators (and even one President of the United States) but has attracted the attention and resources of the ABA (no fewer than 4 presidential activities devoted to legal education in less than a decade), AALS (at least one major study and public relations campaigns), LSAC (more frequent testing opportunities and greater data sharing), NCBE (participation in debates if not arguments over the causes of bar passage declines), and NALP (surveys to populate major studies on trends in employment).  As we undertake this virtual symposium some 150 years since the basics of our current system of legal education were implemented by Christopher Columbus Langdell, there is no shortage of expounding. 

 

What there may be, however, is a shortage of action, or at least action resulting in more fundamental change.  While even a quick perusal of viewbooks and websites and the dreaded “lawporn” that descends upon USN&WR voters each fall reveals much discussion of action masquerading as innovation in legal education, it is unclear that we collectively are undertaking little more than what Professor Madison might characterize as silos in action.  Much of that action refers to innovation through a new clinic or a new program that may offer a version of something new but does not really get to the fundamental aspects of teaching and learning and preparing students to practice.  The 1L year looks pretty much like it did when I started law school almost 40 years ago, let alone when my dad started law school almost 70 years ago or my grandfather almost 100 years ago.  Torts, Contracts, Civil Procedure and the rest taught in large sections with some legal writing thrown in remain the constant.  2L offers some opportunity for practical experiences with a few credits for clinical classes or moot court and 3L continues as an amalgam of electives while looking for a job.   

This aversion to serious action addressing the critiques of contemporary legal education that are bandied about is understandable if not lamentable.  For example, the dreaded bar exam, our profession’s barrier to membership, is stuck in the past with testing by and grading of antiquated essays and multiple choice questions rather than modern testing devices assessing capability to serve clients.  And isn’t that ultimately the rub?  Are we preparing lawyers capable of serving clients or are we educating for something else?   

This conundrum reflects the technological advancements of the information age over the past generation whereby legal information now is readily available to the masses, no longer limited to the confines of law libraries.  This trend means that law schools must do more than transfer “the law” from one generation of teachers to another generation of students aspiring to be lawyers.  Our task as legal educators now must be different, teaching use of the law, or what may be characterized as judgment.  Not all agree, of course, and so goes the conundrum, well described by Jerry Organ’s first post in this symposium.

Assuming that at least some of us adopt the perspective that our job as law teachers is changing due to this fundamental generational shift, then a call to action is apt.  But action to what?  Surely this action cannot mean doing more of the same, by just adding that extra clinic or another institute.  Rather our direction must be guided by more fundamental adjustments in our curriculum so that we can affect positively the preparation of our students to be lawyers and not just knowers of “the law.” To accomplish this task, we must act in ways that will accelerate our students’ professional maturation.  We must have them work not like the law students we were bellowing our newly learned rules of law but rather like the lawyers they wish to become. 

At Elon University School of Law, where I have served as dean since 2014, we have undertaken to do just that.  Our guiding principle is to address the prominent critiques of legal education as being too disconnected from the practice of law, too expensive and too long.  So we decided to think and do – we thought about those critiques and then we acted. 

Over the past four years, we have changed our curriculum to accelerate professional development through a logical progression of learning that requires each student first to observe, then to simulate, and finally to complete a full time residency-in-practice in a law office or judge’s chambers for academic credit.  This highly experiential curriculum, fully compliant with ABA standards, is accomplished in two and one half years, allowing us to reduce per student average debt by some 20%.  Having graduated the first class in this new curriculum last December, Elon Law stands in response to Professor Madison’s call to action.  We know we are not alone and are encouraged by efforts of some other law schools to alter traditional ways of preparing lawyers and thereby prove it is possible not just to think but also to do.  

In posts following, I will share the process by which we came to amend our curriculum, how we are assessing it, and what other activities remain to round out Elon Law’s efforts to act – to think and do so that we offer a contemporary path to our students’ preparation for a life at the bar. 

Luke Bierman (Elon)

 

Posted by Dan Rodriguez on March 6, 2018 at 08:50 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Monday, March 05, 2018

Legal Ed's Futures: No. 3

Who Do We Serve?

 The structure of our legal profession increasingly benefits elites. Although large companies and wealthy individuals grumble about the cost of legal services, they can afford the very best. Attorneys for these elites are accomplished professionals: highly educated, carefully mentored, and superbly connected (often through their elite academic backgrounds). Businesses, moreover, can complement their legal assistance with armies of non-lawyers performing legal tasks. Contract managers, compliance officers, HR specialists, and other employees do legal work for these companies without the higher salaries demanded by lawyers. These businesses are also in the best position to take advantage of technologies that streamline law-related tasks.

The majority of individuals living within the United States lack these advantages. Too often, they cannot afford to hire any lawyer—even when coping with life-changing circumstances like divorce, child custody, home foreclosure, or deportation. When these individuals receive legal assistance, their lawyers may lack the training, institutional support, and time to offer the first-class legal assistance routinely provided to elites. Most frustrating, individuals cannot purchase legal assistance from non-lawyers who could provide fruitful assistance. Our prohibitions on the unauthorized practice of law primarily harm individuals; companies avoid those restrictions by hiring non-lawyers as employees. Nor do individual clients have access to the technologies that help businesses meet their legal needs efficiently—often because bar associations aggressively attack non-lawyers who try to offer those technologies.

Law schools, sadly, have done little to disrupt this structure. The Rules of Professional Conduct languish in a doctrinal backwater at many schools; most professors lack basic knowledge about the structure of our profession and the rules that govern us. Only a few innovative schools and scholars are seriously exploring new means of delivering high-quality, affordable legal services to individual clients. Even fewer are challenging the assumptions of a profession that jealously guards its exclusive right to practice law—while failing to serve the majority of individuals who need legal services.

As law schools look to the future, we need to ask these very basic questions: Who does the legal profession serve? Who should it serve? How can we design educational paths that graduate professionals capable of offering those services? Is it time to abandon our cherished belief in a general law degree, rather than one that allows focus and specialization? Is it time to recognize that individuals with an appropriate college degree may be capable of offering a wide range of basic legal services to individuals—just as they currently offer law-related services to businesses in their compliance, contract management, and HR roles? What other educational paths would help fill the gap in legal services?

As the price of legal education continues to climb, the percentage of graduates employed in lucrative jobs stagnates, and enthusiasm for law school wanes, I fear that our profession will lapse into ever-greater service to elite clients. We will continue to feel good about high-profile pro bono efforts, but pro se litigants will continue to flood the courthouses while other individuals fail even to seek justice. How can we turn this tide?

Deborah Merritt (Ohio State)

Posted by Dan Rodriguez on March 5, 2018 at 04:39 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 2

The Importance of Focusing on “Being a Lawyer” – Professional Identity Formation in the 21st Century

In Part III of his series, Professor Madison discusses five themes that are the focus of “conversations about the state and future of legal education, and by extension about law and the legal profession as a whole.”  One of those themes is professional identity, a theme I believe is of profound importance but until recently has been underemphasized within legal education.

In the last millennium, when most of us went to law school, the lawyer identity was shaped largely by BOTH the legal profession’s monopoly on knowledge of and understanding of the law AND the legal profession’s monopoly on the provision of legal services.  Being a great lawyer meant one could focus largely on “thinking like a lawyer” because there was no one who could compete with lawyers for providing access to the law and to understanding what the law meant for a specific client in a specific situation.  This understanding of professional identity is the “first apprenticeship” mentioned in Educating LawyersEducating Lawyers highlighted that this was the “dominant” aspect of professional identity within legal education, which placed much more emphasis on “thinking like a lawyer” than “being a lawyer” -- much more emphasis on critical thinking and analysis than on developing a “fiduciary disposition,” and understanding the importance of relationship skills in building the trust relationship essential to provide wise counsel to clients.

As we move past the halfway point of the first-third of the 21st  Century, that first monopoly has disappeared completely as a result of technology and the internet.  Access to the law is now widespread and inexpensive.  Indeed, advances in coding and artificial intelligence are making it easier and easier for lay people not only to “find the law” but to get some idea of how it applies to them and their situation.  A well-structured series of yes/no questions can inform someone if their situation implicates a given statute or regulation.

But clients frequently need to know more than what the law allows or prohibits.  They frequently need to understand which of a range of allowable options makes the most sense given the clients specific interests and concerns.

For lawyers to have distinctive value in an artificial intelligence world, it will no longer be sufficient for law schools to produce graduates adept at “thinking like a lawyer.”  This will be necessary, but not sufficient.  Legal education will increasingly have to help produce graduates who are capable at “being a lawyer” – providing great client service in the interstitial spaces where they help clients explore among a range of legal options.

Lawyers are no longer going to be adding value by helping clients answer whether they “can” do something – whether the law allows them to do something.  Clients will be able to do more and more of this on their own.  Where lawyers are adding value and increasingly will be adding value is by helping clients work through the “should” questions.  Among a range of possible options, which “should” the client select given the client’s legal and non-legal interests and concerns.  “Being a lawyer” involves these type of “wise counsel” situations that require one to “think like a lawyer,” but even moreso require relationship skills – active listening, empathy, responsiveness, effective framing and exploration of alternatives.  These are the skills of “being a lawyer” – of building relationships of trust with clients in which they feel heard and believe their lawyers understand their interests and concerns and are helping them effectively and efficiently make decisions that will best serve their interests and concerns.

While the published learning outcomes of many law schools indicate that there may be a growing interest in many of these relationship competencies, whether law schools will invest in the educational and assessment infrastructure to make sure their graduates develop these relationship competencies remains to be seen. 

Jerry Organ (University of St. Thomas (Minnesota))

Posted by Dan Rodriguez on March 5, 2018 at 12:14 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No.1

The posts for this symposium will be listed in order just by a number, with the author & affiliation at the end of the post

The Real Barriers to Access to Justice

               It’s an honor to comment on Mike Madison’s reflective manifesto on the future of legal education. Mike introduced me to legal blogging 12 years ago, and I have learned so much from him along the way. Few law professors better balance the scholarly detachment and commitment to justice that are the hallmarks of our profession. Mike’s humane invitation to imagine better methods in legal education is inclusive, timely, and well-informed. I hope he’ll forgive me for trying the broaden the conversation beyond his already expansive scope.

               I share Mike’s concerns about the need to adapt the legal profession to changing technology. I have written and taught extensively about the relationship between coders, managers, and lawyers in data-driven areas of finance and law. I teach venerable cases in my health law courses, but also keep up with the alphabet soup of highly technical ATCBs, RACs, and QIOs in the world of big data driven health care. We need to recognize where law schools are trying to meet this new reality, and to build awareness of that work. I agree with Mike that the median law school needs to do more to keep up with technological change—both because of the functional sovereignty of large firms, and the ways that software and data are changing legal practice.

However, I think Mike’s “Invitation” could benefit from a bit more realpolitik. In this document, the legal profession itself stars as the key barrier to access to justice: it is slow to adopt technology, restricts entry with excessive licensure requirements, and bogs down in technicalities. Let’s assume, for now, that these are fair charges.* Are they really the reason why so many consumers feel unable to fight giant corporations, or why employees feel trampled by the fissured workplace?

I’d like us to keep in mind a few other factors. The evisceration of class actions, the rise of arbitration, boilerplate contracts—all these make the judicial system an increasingly vestigial organ in consumer disputes. You cannot read a book like Lewis Maltby’s Can They Do That? without recognizing that the powerlessness of most workers is not the result of a paucity of lawyers (especially in an country with more per capita than almost any other), or greedy firms overcharging for services. It is, instead, the result of a web of rules woven by lobbyists and elite attorneys over decades with the intent of making the firm, in effect, a private government. Corporations have skillfully funded candidates in state judicial elections (or politicians who appoint judges) who promote their vision of a stripped-down, nightwatchman state. Make lawyers as cheap and skilled as you want—they can’t help victims access justice if the laws themselves are systematically slanted against them. The same goes for #legaltech: I expect every innovation to, say, create apps to help the evicted, to be overwhelmed by a tsunami of money backing services like ClickNotices.

On the criminal side, the underfunding of public defenders (and other advocates for those targeted by the carceral state) is shameful. From a supply-side perspective, the answer here may be to cheapen training and thereby double the number of public defenders, so that states could perhaps hire two at $24,000 a year instead of one at $48,000. I do not believe that’s a great solution. As long as there are $1.5 trillion tax cuts flying around (mainly to top income brackets), and 1412 households in the US making over $59 million annually, I’d put forward a vision for more spending on these vital services, at a good wage, with a strong Public Service Loan Forgiveness Program. The latter should not even be considered a subsidy, given the vast profits the government has made on student loans generally, and the market’s systemic undervaluation of public service work. I realize that policy is going in the opposite direction now—but let’s also realize how much that development is driven by private lenders’ lobbyists, who want to make the federal student loan program a quicksand of confusing paperwork and high interest rates in order to make their own products comparatively more attractive.

Moreover, even on the criminal side, we cannot begin to have a serious discussion about access to justice as a supply-side issue, without acknowledging the role of the powerful in society in reducing effective demand for these legal services. We could abolish licensure tomorrow, and let every person hang out a shingle—but there won’t be a proper level of work for, say, attorneys defending the wrongly accused (or excessively punished) if punitive neoliberalism simultaneously expands the criminal justice apparatus while cutting funding to defense attorneys (or capturing the resources of the accused via civil forfeiture). We will never have an optimal supply of lawyers promoting workplace rights, if the effective penalties for violating the law are negligible, or if litigation is too chancy and slow to guarantee some reasonable return for one’s efforts over time.

So I’d propose that we think more about the real barriers to access to justice. To be sure, many law schools could do more clinical work to help the poor in their community—but let’s always remember what happened to Tulane when they offended Louisiana polyvinyl chloride barons. Legal scholars can do more to identify structural injustice—but let’s also remember the BigLaw fixers who stand at the ready to deflect even minimalist reforms.

We can’t formulate solutions together if we don’t grasp a common set of problems. We can’t imagine a better future without an honest accounting of the present. But once we do, I think we can develop some visions for better legal practice that will respond to some of the key concerns raised by Mike—as I plan to do in a later post on AI & law.

* In academic work, I have challenged each of these characterizations, observing the ways in which parts of the profession have promoted troubling technology, ignored the real value of licensure, and embraced disastrously algorithmic forms of regulation. I realize that there are other examples that vindicate Mike’s telling, and they could outweigh mine. I just want to mark this disagreement on emphasis.

Frank Pasquale (Maryland)

Posted by Dan Rodriguez on March 5, 2018 at 08:07 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Friday, March 02, 2018

Summit on the Future of Legal Education and Entry to the Profession

Showing synthesis with this month's Prawfs Virtual Symposium on the Futures of Legal Education, on April 12-13, FIU College of Law and FIU Law Review will host a Summit on the Future of Legal Education and Entry to the Profession. The program is organized by my colleague Scott Norberg, who will be at Prawfs this month; several authors will participate in both programs, including Dan.

Posted by Howard Wasserman on March 2, 2018 at 10:56 PM in 2018 Symposium: Future of Legal Ed, Article Spotlight | Permalink | Comments (0)

The Futures of Legal Education: A Virtual Symposium

ith the blessing of the Prawfsblawg lead editors, I am pleased to present an interactive symposium on the wide lens topic of “the futures of legal education.”  Reflection upon this issue is always welcome, and underway daily in various forms and fashion. The impetus for this particular discussion is an interesting series of posts at the new year by Prof. Michael Madison of the University of Pittsburgh. Here are the posts: Part I, Part II, Part III, Part IV, Part V.

You will see that this Madisonian (!) missive is principally a call for engagement among myriad stakeholders on the critical issues of “what must be done?!”  This symposium for Prawfsblawg engages one key stakeholder group, law professors.  A number of professional colleagues from a diverse range of schools and backgrounds have kindly agreed to take part in this symposium.  They are:

Robert Ahdieh (Emory)

Luke Bierman (Elon)

Douglas Blaze (Tennessee)

Megan Carpenter (New Hampshire)

Dan Hunter (Swinburne, Australia)

Harold Krent (Chicago-Kent)

Scott Norberg (Florida International)

Jerry Organ (St. Thomas)

Hari Osofsky (Penn St.)

Deborah Merritt (Ohio St.)

Michele Pistone (Villanova)

Frank Pasquale (Maryland)

Eduardo Penalver (Cornell)

Gordon Smith (BYU)

Kellye Testy (Law School Admissions Council; U. Washington)

Mark Tushnet (Harvard)

Michael Waterstone (Loyola, L.A.)

Mike has provided a short paragraph to help in framing the symposium.  I include it here in verbatim:

Symposia can be both provocative and useful, but talk can be cheap. What follows the talk?  I have been frustrated for years by the dis-connected and siloed character of future-oriented conversations among both academic lawyers and legal professionals.  Like many of us, I see lots of silos:  elite silos and non-elite silos; student-centric silos and practice-centric silos; bar-related silos; legal tech silos; US silos; access to justice silos, “it’s the economy, stupid” and scholarly silos; incrementalist silos, etc.  I am simultaneously a little crazy (perhaps) and speculative (to be sure) in my optimism that there is a constituency out there for larger-scale, longer-term, deeply-rooted, integrative thinking and acting.  My posts in late December were the products of several years’ worth of conversation and reflection.  I think of them as calls to action. Thanks in advance to all who will post here and elsewhere and who will, I hope, carry our shared ideas forward in yet-to-be-determined ways.

 Please be on the lookout for symposium posts as they appear this month.  While the comment feed will remain closed for this symposium, readers who have a particular reaction which they would like to share as a comment, please send to me directly and I will post them as I think appropriate.

Yours truly,

Dan Rodriguez (Northwestern)

Posted by Dan Rodriguez on March 2, 2018 at 03:45 PM in 2018 Symposium: Future of Legal Ed, Daniel Rodriguez | Permalink | Comments (0)