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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 | Permalink


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