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Wednesday, March 28, 2018

Legal Ed's Futures: No. 37 (Michael Madison)

A thousand thanks to all contributors to this Symposium. I have a handful of additional provocations to share:

  1. Regulation of the profession and accreditation of legal education providers:

The current system of accreditation and regulation of US law schools is seen by some as critical and by others as retrograde. As I type, a Site Visit Team from the Section of Legal Education and Admissions to the Bar of the American Bar Association is visiting my campus, my law school, and (as of 9 am this morning), my class.  I’ve seen the “classroom observation” rubric that the team is using.  It is hardly rigorous.  Nor is it inclusive of non-standard pedagogy.

Among the commentators in this symposium, Scott Norberg and Jackie Gardina in particular have addressed the role of the ABA in accrediting law schools.  Several commentators have broached the idea of non-JD legal education.  Frank Pasquale has cautioned appropriately against “managerialism.”  Law schools can game accreditation and rankings systems by masking their efforts as “innovation.”

My questions are:  Should the ABA continue to play any role in accrediting law schools and/or other providers of legal education?  How should legal education programs other than the three-year JD be accredited or otherwise regulated?  What is the appropriate relationship between regulation of legal education, which the ABA now dominates (in the US), and regulation of professional services / legal information delivery, which state Supreme Courts and/or state bars dominate?  How do we appropriately connect questions about the future of legal training (the academic side) to questions about the unauthorized practice of law (companies such as LegalZoom, Rocket Lawyer, and Avvo) and about unbundled legal services (the services side)?  In that ecology, what is the proper role (or roles) of professional licensure? 

     2. Bringing the professions into this dialogue:

For all of the thoughtful commentary “here” in a community of legal academics, there’s a ton of ambitious and energetic dialogue out “there,” in communities of law practice, legal tech, and access to justice.  Float around Twitter for awhile, and/or blogs on these topics, then ask: Why do so many of the energetic reformers in the services/impact spaces seem to have so little meaningful interest in what is happening in the core programs of legal education?  To me, “why?” isn’t the more important issue.  The more important issues are whether a required first-year JD curriculum of Contracts, Torts, Civil Procedure, Criminal Law, and Property, plus a side dose of Legal Analysis and Writing, still offers the best way to begin the acculturation of a new generation of lawyers, and whether law professors are the right people to decide?   A suite of outside, non-academic perspectives may be critical parts of answering that the identity-of-the-core-program question and equally important parts of asking and answering related ones.  I don’t think that we need “outside the box” thinkers.  I do think that we, as academics, need help in identifying the box.  Or boxes. 

My question is:  How do we bring non-academics meaningfully into this dialogue, taking account of the hope (my hope, anyway) that we’re not talking only about short-term or micro interventions of the sort represented usually by the idea that law schools should teach more X and less Y?

    3. Risk management:

We’ve heard from Deans at some law schools that have taken substantial steps toward implementing a newer, more integrative, broad-brush reform agenda (Luke Bierman at Elon, Dan Hunter at Swinburne).  We’ve also heard praise for more incremental approaches and an acceptance of evolving institutional pluralism (Mark Tushnet, Harold Krent).  If legal education writ large embraces the former approach, what’s the scope of the risk that we miss markets altogether, by training graduates who are technologically adept but incapable of dealing effectively with humans? If it embraces the latter approach, what’s the scope of the risk that legal education teaches its way into irrelevance, by failing to prepare graduates for ever-growing diversification of need among clients and communities? Given that we have incomplete information about changing social needs for legal services and legal information, where and how do we place our bets? 

My question is:  Is there a suitably flexible middle ground, and what does it look like?

  1. Higher education matters:

Hari Osofsky has been vocal here in trying to situate legal education in a broader higher education context.  Here’s more on that note.  No law school is an island, even stand-alone law schools.  A law school in a university is part of the economic, cultural, and political ecologies of that university. As law professors, we should no longer assume that that what a law school does or wants to do is basically a matter of law faculty governance (subject to ABA review) and/or the law Dean’s ability to bargain with the Provost.  Any law professor with recent experience in Dean searches should appreciate the wisdom of the Rolling Stones. You can’t always get what you want / But if you try sometimes you just might find / You get what you need.  Faculty parochialism is giving way to presidential vision.

For good or for ill, the university is the world that we all live in, and understand the imperatives that drive the university we must.  If you think that law schools and law Deans are struggling with enrollments and budgets, take a second and talk to a university president!  It is the rare law school these days that can look to its parent institution as a well-funded, reliable “bank.”  Even the small number of stand-alone US law schools are not immune from these concerns.  They don’t have Provosts and colleagues in English and Engineering, but they do compete for students and faculty in markets that are dominated by law schools that do. 

None of that implies uncritical deference to university goals.  Frank Pasquale’s counsel against managerialism is relevant not merely to thinking about the uses of the law school.  It is most relevant to the uses of the university.  The university is where the action is, even for law faculties and Deans.

Langdell’s Harvard Law School emerged out of Eliot’s vision for Harvard University, which itself reacted to global social and economic shifts.  The American college was becoming the Germanic university.  Late 19th and early 20th century law schools that professionalized law as an academic subject were part of larger shifts to research-based higher education.  Twenty-first century universities are organized around different changes and challenges. The professionalized legal academy may be a barrier – to justice as much as to innovation -- as much as an opportunity.

My question is: How should law schools participate in new and emerging systems of higher education?

     5. Vision, Barriers, and Action:

I’m keeping in mind the “change management” framing that I included in my initial “invitation.”   

My question is:  What’s next?  I have some ideas, and when the symposium winds down I am hoping to keep the momentum going.  Meanwhile, I recommend to all a little book by John Kotter, “Our Iceberg is Melting: Changing and Succeeding Under Any Conditions.”  It’s more than a little hokey, but there’s a lot of truth in it. 

Michael Madison (Pittsburgh)

Posted by Dan Rodriguez on March 28, 2018 at 12:59 PM | Permalink


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